The American Medical Association and Insurance industry are very powerful groups that have lobbied the state legislature to draft and pass special rules that benefit health care providers.
Medical Malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice (Standard of care) in the medical community and causes injury to the patient.
The injured patient must prove that a physician, hospital, doctor or a healthcare professional, acted negligently in rendering reasonable care, and that such negligence resulted in injury. For this the victim has to enlist the services of an experienced Miami medical malpractice lawyer. The following four elements need to be proven to constitute a medical malpractice:-
- DUTY OF REASONABLE CARE WAS OWED BY HEALTHCARE PROFESSIONAL.
In a medical malpractice claim, the first element which a plaintiff must prove Is that the defendant owed the plaintiff a duty of care. This duty arises from a physician-patient relationship, in which the healthcare giver assumes the obligations associated with caring for his patient.
- VIOLATION OF THE STANDARD OF CARE.
The plaintiff must prove that the defendant’s care was substandard and care rendered was unreasonable. It can also mean that, though the act was appropriate, it was performed in a negligent manner.
- INJURY TO THE PLAINTIFF.
The plaintiff must have suffered some injury in order to give rise to a claim for damages.
- LINK BETWEEN THE NEGLIGENCE AND THE INJURY.
A negligent act that does not result in an injury is not sufficient to constitute a legal claim. The defendant’s negligence must have caused or contributed to the plaintiff’s injuries.
Our team of Medical Malpractice attorneys has highlighted below 5 of the most prominent medical malpractice laws in Florida :-
1. INFORMED CONSENT REQUIREMENTS.
Informed consent is a concept that varies from state to state. A doctor cannot perform a procedure without explaining the risks of the procedure to the patient.
In Florida, the informed consent law requires that the patient be advised of three things namely,
- Nature of the procedure.
- Substantial risks and hazards involved in the procedure.
- Alternative procedures.
After being informed of this requirement, if the patient consents, then informed consent is said to have been given. In Florida, if a doctor or any healthcare provider fails to obtain the informed consent of the patient before a procedure and if the patient suffers an injury as a result, the doctor may be liable under theory of Medical Battery.
2. STATUTE OF LIMITATIONS.
There are certain specific time limits, restrictions and rules for filing a medical malpractice lawsuit in Florida. An experienced Florida Medical Malpractice lawyer ensures that you fully understand the Federal, State and Local laws that might apply to your case.
The strict procedural requirements in the Florida Comprehensive Medical Malpractice Reform Act reflects a legislative determination to curtail claims and discourage Medical malpractice attorneys from representing victims of medical malpractice.
Under Florida law, ordinary Negligence cause of actions are subject to a four year statute of Limitations. Florida has codified a two year statute of Limitations for medical malpractice causes of action. A victim of a medical malpractice has 2 years from the date of the negligent treatment or 2 years from the discovery of injuries suffered due to the medical malpractice to file a lawsuit.
3. STATUTE OF REPOSE.
This Statute sets the deadline for maximum amount of time a victim has to file a lawsuit. Under Florida laws, after four years, a victim of a medical malpractice cannot file a lawsuit.
Exceptions to the statute of Repose are:
- If the case involves concealment, fraud or intentional misrepresentation, then the statute of Repose is extended up to 7 years.
- A minor has until his or eighth birthday to bring a suit for medical malpractice.
4. PRE-LAWSUIT REQUIREMENTS.
Florida has a series of pre-suit rules which are very precise. The consequences of not following them are severe. it is important to consult a Miami Medical Malpractice lawyer as it is complicated to pursue such a claim in Florida.
In Florida, in order to bring a Medical Malpractice lawsuit, a prospective plaintiff must fulfil very strict pre-trial requirements which discourage unmerited and frivolous claims. The attorney must file a notice of intent with a corroborating expert opinion from a specific medical provider. This notice contains names of the prospective plaintiff and defendants and summary of claim sought and Injury suffered. This notice is sent to each of the defendants and in some cases state agencies. The suit will fail if it is not supported by such a sworn statement and other relevant medical evidence.
5. PRE-LAWSUIT INVESTIGATION.
The plaintiff has to wait for 90 days after serving the notice to the defendants before filing a suit. The defendants are given an opportunity to conduct an investigation and then they can either reject the claim, make a settlement offer or offer to arbitrate in which liability is accepted and arbitration is held only to determine extent of damages.
COMMON TYPES OF MEDICAL MALPRACTICE
Misdiagnosis counts as a malpractice because it prevents a patient from receiving necessary treatment. A doctor examines the patient but fails to diagnose the correct illness. The patient may be diagnosed with a condition that he or she may not have.
- DELAYED DIAGNOSIS:-
For a case to qualify as a delayed diagnosis, doctor must have assessed the patient less competently than other doctors would have.
Initially doctor makes an incorrect diagnosis, but ultimately patient does receive correct and accurate diagnosis. This delay results in deterioration in the patient’s condition due to not receiving timely treatment.
- BIRTH INJURIES.
Birth injuries are a common consequence of medical malpractice. When a doctor fails to identify and address prenatal or neonatal risk factors, he or she can be held liable for medical malpractice.
Improper birthing techniques, failure to respond appropriately to delivery complications can result in significant birth injuries such as Erb’s Palsy, fetal anoxia, Cerebral Palsy, jaundice etc.
- FAILURE TO TREAT:-
On many occasions, a doctor arrives at the right diagnosis but fails to prescribe the adequate treatment. This failure constitutes a malpractice. Doctors fail to treat a patient diligently and release a patient too soon, omit to offer proper follow-up care or neglect to refer patient to a specialist.
- SURGICAL ERRORS:-
Examples of surgical errors that may constitute a malpractice include:-
- Performing incorrect procedure.
- Performing unnecessary surgery.
- Damaging organs, nerves or tissues during surgery.
- Administrating incorrect amount of anaesthesia.
- Using non-sterile surgical instruments.
- Leaving medical equipment inside patients.
- MEDICAL PRODUCT LIABILITY:-
Medical Professionals are not always at fault. In some instances patients suffer because a medical device used in their treatment was faulty or of substandard quality.
This faulty devices or equipment cause damage before their defects are discovered. The health of patients worsens because this devices fail to provide the desired benefits.
COMPENSATION FOR VICTIM OF A MEDICAL MALPRACTICE IN MIAMI.
Florida medical malpractice laws permit three forms of compensation which can be awarded by verdict or negotiated through settlement. These are :
- ECONOMIC DAMAGES.
These include past, present and future medical expenses, loss of wages, loss of employment or business opportunities. Lawyers present hospital and insurance bills which can be compensated for. These damages are quantifiable and reimbursable.
- NON-ECONOMIC DAMAGES:
These damages are difficult to calculate. They include damages for loss of enjoyment of life, emotional pain and suffering, anguish etc.
- PUNITIVE DAMAGES:
These damages do not compensate any losses. Their purpose is to punish the wrongdoer and deter others from committing reckless actions through malice.
WHY HIRE KAIRE & HEFFERNAN ?
Medical Malpractice is a very specialized branch of law. Our team of Miami medical malpractice lawyers are experienced in examining, preparing and presenting complicated and complex medical evidence. Insurance companies representing doctors and hospitals possess considerable financial resources which they utilize to hire formidable defense attorneys and experts. It is necessary to have an experienced medical malpractice attorney by your side to take on large insurance companies and their attorneys.
Our team of competent Florida medical malpractice lawyers carry out the following duties for our clients:-
- Conduct a thorough investigation of the case.
- Consult medical experts.
- Identify liable parties.
- Determine the value of the claim.
- Coordinate and communicate with legal representatives of the defendant/s.
- Strive for a fair settlement on victim’s behalf.
- Take the case to trial if required.
CONTACT A MIAMI MEDICAL MALPRACTICE LAWYER.
If you or your loved one has been a victim of a medical malpractice in Miami, you deserve to be duly compensated for the injuries suffered and other damages. Call an experienced medical malpractice Lawyer at our firm for a free case evaluation right away.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.