Answers To Common Questions About Medical Malpractice Cases In Florida

Health care professionals have a duty to follow a standard of care. Often, the standard of care is what health care professionals most commonly provide to treat illnesses or conditions in ways that avoid the most harm. Medical malpractice, or medical negligence, is negligence committed by a health care professional who failed to live up to that duty of care. The failure caused harm to a patient, which would not have happened if the health care professional had followed the standard of care.

Of course, medical malpractice litigation is more complicated than the explanation above, and clients often have many questions. On this page, our attorneys at Kaire & Heffernan, PLLC have provide answers to the questions that we receive most often.

Do I have a case?

One of the most commonly asked questions from potential medical malpractice clients is: “Do you think I have a case?” To which our honest response is: “We are not sure.”

The reason that we may not be sure is that medical malpractice cases must be reviewed by experts. When a doctor leaves a foreign instrument inside a patient’s body following surgery or operates on the wrong body part, it is an obvious case of medical malpractice. But not all cases are that obvious, and that is why you need a medical malpractice lawyer who will thoroughly investigate your case and look for qualified experts to help you prove your case.

What are examples of medical malpractice?

There are many types of medical malpractice. For example, it’s malpractice whenever a foreign object, like gauze or a clamp, that should have been removed is left in someone’s body after surgery. It’s malpractice to induce a patient to agree to an experimental procedure that could harm them without them knowing all the risks. It’s malpractice to give someone the wrong medication or do surgery on the wrong body part.

Is misdiagnosis considered medical malpractice?

Misdiagnosis can be medical malpractice, but not always. Mistakes are possible even when doctors show the utmost care for their patients, especially when the symptoms of a rare illness are similar to a more common one. However, misdiagnosis could be malpractice if the misdiagnosis was made because of a failure to meet the standard of care, and if a reasonable doctor in the same position would not have made the same mistake. A good rule to remember is that a prudent medical provider should always treat the worst first.

Is it malpractice if I didn’t obtain the desired outcome after a treatment or operation?

This depends on why the desired outcome did not happen. Most of the time, patients give informed consent to procedures. They’re made aware of the risks and the likelihood that it may not turn out exactly as they had hoped. If the doctor followed the standard of care and the outcome wasn’t exactly what you hoped for anyway, then it may not be malpractice. However, if the doctor deviated from the standard of care and the outcome was bad enough that it caused you harm, then it could be malpractice.

Do unexpected or unsuccessful results mean medical malpractice occurred?

Unexpected and unsuccessful results are not the same as medical malpractice. Generally, if patients are aware of the possibility of complications or no improvement, then it’s not malpractice if the doctor otherwise did everything correctly or up to the standard of care. For example, it’s malpractice if, for no rational reason, the doctor chose an unconventional procedure with a high likelihood of unexpected results or no success over a standard procedure that’s more likely to yield positive results.

How do I know if I or someone I know is a victim of medical malpractice?

Unfortunately, you may not always know until you start to see the harm done, and still, many may not even realize that they are victims of medical malpractice. Usually, someone thinks a health care provider has committed malpractice on them because they’re suffering in some way due to medical treatment or lack of proper treatment.

Who can file a medical malpractice lawsuit?

An adult who is not anyone’s ward may file a medical malpractice suit on their own behalf. Parents and guardians of children who have suffered malpractice may file a suit on the child’s behalf. A guardians of an adult may file a suit on the adult’s behalf. If the victim of medical malpractice dies, then their next of kin can file a suit. For a minor or an adult under the age of 25 who is not married and has no children, the parents can file a suit. For a married adult, their spouse and/or children under age 25 can file a suit.

What is informed consent?

Informed consent is the permission a patient gives a doctor to treat them medically for a specific illness or condition because the patient is aware of and understands the purpose of the treatment, the risks and the benefits. If a patient gives informed consent, it means that they understand what the doctor will do; how it’s supposed to help them; and what could happen, both good and bad, during and following the procedure.

Can I still file a medical malpractice claim if I have signed a consent form?

A patient doesn’t consent to a health care provider committing malpractice on them or a doctor deviating from the standard of care. It’s also possible to have signed a consent form without having the necessary knowledge to give informed consent, especially if the doctor withheld information or gave the patient incorrect information.

What is a standard of care?

Standard of care is a specific legal term meaning the amount of caution and carefulness a person agrees to show when they do something for another person. The standard of care in a medical context is the cautious, careful and rational care a medical professional would show a patient. It’s often what another trained medical professional would have done when treating the same patient under the same circumstances.

Are nursing home cases considered malpractice?

Sometimes, but not always. Plaintiffs may sue nursing homes for personal injuries, elder abuse, negligent hiring, negligent supervision, premises liability and medical malpractice. In some cases, when the nursing homes mismanage resident funds or steal from the residents, plaintiffs may sue for fraud, breach of contract or tortious interference with a business relationship or contract.

Is there a statute of limitations on medical malpractice in Florida?

There is a statute of limitations of two years after the discovery of the injury or when the injury should have been discovered. This means that the “clock” starts when the individual first learns that malpractice may have happened to them, regardless of when the actual malpractice happened. For example, if someone discovers today that a clamp was left in their chest cavity from a surgery three years before, the statute of limitations begins today, and from today, they have two years to file a lawsuit.

What is the medical malpractice statute of repose?

There are two modifications to the statute of limitations, known as the statute of repose. First, the time between the actual injury and the filing of the lawsuit can be no more than four years. This means that any victim of medical negligence has four years total from the date of injury to file suit, and the two-year statute of limitations begins somewhere within those four years. However, this four-year limit doesn’t apply if the injury happened to a child under the age of eight years old. In that case, only the statute of limitations applies.

Yet, this four-year limit doesn’t apply if there was fraud or concealment of the injury from the victim. In this case, the limit is two years after injury is discovered despite the fraud or concealment, with a seven-year limit to file suit from the date the injury actually occurred.

Are medical malpractice lawsuits common?

Contrary to popular belief, medical malpractice lawsuits are not nearly as common as actual occurrences of medical malpractice. Even though medical errors are estimated to be the third leading cause of death in the United States, less than 5% of all civil lawsuits in the country are for medical malpractice.

What happens during a medical malpractice lawsuit?

A medical malpractice lawsuit is much like any other civil lawsuit. A plaintiff brings a cause of action and has a medical provider sign an affidavit stating that they believe the plaintiff’s health care provider committed malpractice. The defendant finds out about the lawsuit and responds.

From there, the lawyers on both sides gather evidence in the form of documents and witness testimony, known as depositions and interrogatories. During this time, the parties may try to settle the case before going to trial. If this doesn’t happen, then the parties go to trial. The lawyers pick a jury and present their evidence. At the conclusion, the jury renders a verdict. If either party thinks that the judge made a mistake during the trial that hurt their chances of winning, then they can appeal the verdict to the District Court of Appeals, and if that isn’t satisfying, they can appeal to the Florida Supreme Court.

What is a subrogation claim?

When an insurer pays out money to cover the insured’s expenses or injuries, it may seek compensation from the person or thing that caused the injuries. This is a subrogation claim. Most insurance agreements, whether through private insurers or federal programs like Medicare, include a clause on subrogation in their policies, usually under “third-party liability.” In the context of medical malpractice, an individual’s health insurance may make a claim against them if that individual wins a medical malpractice suit in order to get back what it paid out in insurance claims.

Can a general practice lawyer represent me in a medical malpractice case?

While a general practice lawyer could represent you in a medical malpractice suit, a good general practice lawyer isn’t going to try to do this alone. They’ll either refer you to a medical malpractice lawyer or take on a medical malpractice lawyer as co-counsel if the medical malpractice lawyer wants to take on your case. Medical malpractice is a complex sub-category of personal injury law that requires a very specific set of knowledge, including medical knowledge, standards of care, and trial experience and techniques.

Medical malpractice attorneys, as a rule, are trial lawyers. This means that they ultimately go to court. General practice lawyers need not ever go to court for much, if at all, and they may not have the experience or skills necessary for trial advocacy.

Can I represent myself in a medical malpractice case?

You could try, but if you want to succeed, then no. First, you will need to understand the laws and the medicine, and you’ll need access to materials to help you understand the law, including medical malpractice, torts and civil procedure. You’ll need to find an expert witness who will sign an affidavit stating that they believe your health care provider committed malpractice and another willing to testify for you in court.

You’ll need to understand how litigation works. You will also be held to the same professional standard as licensed attorneys, meaning that the judge and the court will not give you any leeway or help you with litigation. There are no pro bono legal assistance programs for something as complex as a medical malpractice suit. You must meet every deadline for every filing and every hearing, and every brief and motion you file must be proper. You must understand and use relevant case law to support your motions. Keep in mind that your opponent will be an experienced medical malpractice defense attorney who has all the education, resources and experience that you do not, as well as associates, paralegals, law clerks and secretaries to assist them. The defense attorney will not help you or be easy on you; they actually can’t help you because it would be unethical and unfair to their own client.

You’ll also need to pay the costs of litigation upfront, which could cost you tens or hundreds of thousands of dollars. Additionally, you’ll have to quit your job for at least a year – perhaps two – and deal with your case full time, and then get used to 90- to 100-hour work weeks if your case goes to trial. If you make an error and your case is dismissed with prejudice or the defendant gets summary judgment, you can’t hire a lawyer and sue them again.

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How long will my medical malpractice case take?

A medical malpractice case can take anywhere between a year and three years in general, but sometimes, it can take much longer, depending on the injury, the parties and the available evidence. Litigation can take a very long time because care must be taken to preserve the rights of both parties. In the interests of justice, time is allotted to gather evidence, make motions, negotiate, prepare for trial and then to go to trial. Often, the trial itself is one of the shorter parts of a medical malpractice case, lasting a few days to a few weeks.

What expenses can I expect in a medical malpractice case?

You, as the plaintiff, will incur no expenses related to your lawsuit, as your lawyer is most likely to work on contingency. This means that your attorney is paid when you get a settlement or a verdict. In the meantime, the lawyer pays all the expenses of your lawsuit. Of course, you may have to pay for a nice suit and your own transportation back and forth to court, but as far as the lawsuit goes, your lawyer and his or her law firm covers that until you settle or win. When that happens, your lawyer may usually get 33.3% to 40% of your award to cover the costs of the lawsuit.

How soon should I make a claim?

You should make a claim as soon as you discover malpractice. There is a statute of limitations.

When should I expect that my injuries were caused by medical malpractice?

It’s hard to say. Sometimes, you can tell right away because something you couldn’t have expected has happened, such as strange complications or outcomes that should not have occurred. Other times, symptoms may not manifest until much later in time after the procedure or treatment. Sometimes, your medical health professional will admit to making mistakes. Other times, they will not.

What should I do if the hospital has already asked about a settlement?

Get an attorney to represent you. The hospital is anticipating a lawsuit and wants to stop it from happening by offering you some money upfront. However, this will probably come with other catches, like waiving your right to sue or talk about your injuries. If you don’t have an attorney, then you’re at a severe disadvantage in a settlement negotiation, and you may be settling for a lot less than your case is worth. The hospital is going to be represented by experienced medical malpractice defense attorneys. You should have the same.

How soon can I file a medical malpractice case?

You can file a claim for medical malpractice – if it’s within the statute of limitations and statute of repose – as soon as the following have been satisfied:

  1. There is a good faith belief that the defendant has committed malpractice.
  2. You have an affidavit from a medical professional.
  3. You have served a notice of intent to sue the hospital or health care provider.

Who can be held accountable for medical malpractice?

Under Florida law, a health care provider may be sued, except for those immune to civil liability. You can sue a hospital or medical center and doctors. Hospitals and medical centers are responsible for the malpractice of employees, like nurses and paramedics, so the employees’ malpractice is the hospital or medical center’s responsibility.

This is because employers are responsible for their employees’ negligence. Nurses are usually employees of the hospital, whereas doctors usually are not employees of the hospital. Doctors are usually responsible for their own malpractice because they contract with the hospital, but if a hospital employee is working under a doctor’s orders or supervision, the responsibility may only be with the doctor.

Can I file a malpractice suit against someone who isn’t a doctor?

Yes, you can. Medical malpractice is the negligence of health care providers. You can file a malpractice suit against any health care provider, including nurse practitioners, physical therapists, dentists, podiatrists and chiropractors.

What are the consequences of a malpractice case for a medical professional?

First, according to one survey, at least 60% of doctors have been sued at least once. Doctors defend themselves against the lawsuit. However, their malpractice insurance will cover some or all of the costs. Being sued will make their malpractice insurance rates go up. It can take time away from their practice. However, it doesn’t affect their licensure. Being sued can, however, follow a doctor, as it’s a matter of public record.

How can I find out if a doctor has been part of previous medical malpractice cases?

It’s relatively easy to find out if a doctor has been sued before. Lawsuits are a matter of public record. They may be found with a simple internet search. Specifically, paid or settled lawsuits can be found by searching for medical professional liability claims at the Florida Office of Insurance Regulation.

How can I find out how much my malpractice case is worth?

There’s no way to determine this with absolute certainty. The expenses and losses you’ve incurred will be factored into the overall claim. An attorney can determine the approximate value of your malpractice case in comparison to similar ones and estimate what it may be worth.

What sort of damages may be covered?

Medical malpractice hurts a victim in numerous ways. First, it causes economic damages, such as medical expenses and lost wages. It causes noneconomic damages too, like pain and suffering. Medical malpractice damages usually cover general damages, special damages and, sometimes, punitive damages.

General damages are compensation for nonmonetary loss, such as pain and suffering, loss of companionship, loss of society, loss of enjoyment of life and more.

Special damages are damages that can be quantified in dollar amounts. This can be lost wages and medical expenses as well as future medical expenses and wages that the victim would have earned.

Punitive damages exceed any of the actual losses and are meant to punish the defendant if they do something especially bad or wrong.

Are there limits on damages in a malpractice case?

Statutory limits (limits created by law) on noneconomic damages were created in 2003, but in 2017, the Florida Supreme Court ruled them unconstitutional. Limit on damages can no longer be applied to noneconomic damages.

What are elements of damage?

If you prevail in a medical malpractice case in Florida, you are entitled to compensation for the following:

  • Medical expenses (past and future)
  • Lost wages (past and future)
  • Loss of earning capacity in the future – if you are working and earning less than you were prior to the medical malpractice
  • Pain (past and future)
  • Suffering (past and future)
  • Loss of enjoyment of life (past and future)

Can anything be recovered if medical malpractice causes the patient’s death?

Yes. In a case where medical malpractice causes a patient’s death, the next of kin can sue on behalf of the patient’s estate. There will likely also be a claim for wrongful death if medical malpractice caused the patient to die.

Will I have to attend court hearings?

This depends on how your case progresses. If it goes to trial, it would be in your best interest, if you can, to testify in court. However, you don’t have to go to hearings for motions or anything leading up to the trial. Your lawyer will go as your representative.

Can a medical malpractice case be reopened after it is settled?

There’s no law against this, but usually, when a lawsuit is settled, meaning the settlement agreement has been signed, the plaintiff agrees not to revisit the claim or future claims arising out of the same incident. However, there are reasons that settlement may be reopened. For example, if the defendant concealed important information from the plaintiff at the time the case was settled, then the court may allow it to be reopened.

Do most medical malpractice cases settle?

Yes. There’s a good reason for that, though. Trials are long and expensive. Unlike lawyers for plaintiffs claiming medical malpractice, attorneys defending health providers don’t work on contingency. A settlement keeps costs down and can happen without a lengthy trial. The courts encourage parties to settle out of court, and settlements can be more lucrative than jury awards.

What do I need to prove in my malpractice case?

According to Florida law, the fact that there is an injury isn’t enough to prove medical malpractice. The plaintiff has to show through evidence that it is more likely than not that the actions of the health care provider represent a breach of the standard of care. If the defendant alleges that the injury occurred as part of the ordinary treatment according to the standard of care, then the plaintiff has to show that the injury was not predictable or expected as part of the medical intervention given.

What makes a good case?

There’s a lot that goes into making a good case. First, the more evidence that shows that the standard of care was breached, the easier it is to prove a case of medical malpractice. This means contacting an attorney soon as someone suspects that they’re the victim of medical malpractice. However, what makes a good case is very fact dependent. A good plaintiff whom the jury can relate to or admire always helps. It also helps when there is a clear breach of duty and obvious damages as a result.

Will I need a medical expert for your malpractice case?

Yes. You’ll first need a medical expert to sign an affidavit stating that they believe your health care provider committed malpractice. Then, you’ll need a medical expert willing to testify at trial that they believe that your treatment didn’t meet the standard of care.

What is an expert, and why do I need one?

Unlike other negligence cases in which the injured party can simply file a lawsuit, medical malpractice cases require that a case goes thru pre-suit. During pre-suit, the plaintiff must present all medical records and an affidavit from a doctor (expert) who is of the same specialty as the doctor, nurse, etc. that committed the malpractice.

If the health care provider against whom or on whose behalf the testimony is offered is a specialist, then the expert witness must specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered, or specialize in a similar specialty that includes the evaluation, diagnosis or treatment of the medical condition that is the subject of the claim. They also must have prior experience treating similar patients and must have actively practiced or taught in that specialty during the three years preceding the date of the occurrence. For example, if the claim is against an orthopedic surgeon, then the expert hired by the plaintiff to testify must also be an orthopedic surgeon.

If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, then the expert witness must have devoted professional time during the five years immediately preceding the date of the occurrence that is the basis for the action to the instruction of students or active clinical practice as a general practitioner.

If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, then the expert witness must have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis for the action to the instruction of students or active clinical practice in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.

Who is considered a health care provider?

The term “health care provider” refers to any of the following:

  • Hospital, ambulatory surgical center or mobile surgical facility
  • Birth center
  • Medical doctor (MD)
  • Osteopath (DO)
  • Chiropractor (DC)
  • Podiatrist (DPM)
  • Optometrist
  • Nurse
  • Midwife
  • Clinical lab
  • Health maintenance organization (HMO) certificated under Part I of Chapter 641
  • Blood bank
  • Plasma center
  • Industrial clinic
  • Renal dialysis facility
  • Professional association (PA) partnership, corporation, joint venture or other association for professional activity by health care providers

Will a judge or a jury decide my medical malpractice case in Florida?

You could have either one. You have the option of choosing a jury trial or a bench trial, which is heard by a judge. There are pros and cons of avoiding a jury trial. However, for a medical malpractice case, it’s often more advantageous to have your case heard by a jury. A judge may understand the trial better than the jury and needs less instruction, but, unlike judges, jury members usually only hear one medical malpractice case in their lives, so they don’t have any preconceived ideas of how they think the trial should go. Also, a jury can better relate to the plaintiff, whereas a judge may not relate to a plaintiff or readily see the human side of the case.

What can I do to prevent medical malpractice from happening to me?

There’s no surefire way to protect yourself against all malpractice. However, there are things that you can do to lower your risk. First, you can do an internet search for the doctor or hospital to find out if the doctor or hospital has ever been subject to a medical malpractice lawsuit. There may be news articles or press releases from law firms that have sued the doctor or the hospital. Second, you can find out how the hospital is rated for safety through Leapfrog and Consumer Reports. Third, you can research the doctor via the Florida Office of Insurance Regulation and the Florida Department of Health to find out if the doctor has been sued or disciplined for misconduct related to treating patients.

Do doctors need medical malpractice insurance in Florida?

Actually, no. Doctors in Florida are not required by law to be insured against malpractice if they can demonstrate that they otherwise have the financial means to cover a malpractice award. However, they’re still required to post a notice in the reception area of their offices where everyone can see it stating that the doctor does not have medical malpractice insurance.

Do all doctors have malpractice insurance?

No. Some states require that all doctors be insured against medical malpractice. However, doctors in Florida aren’t required to have it. Some choose not to pay the insurance premiums and instead create an escrow account or line of credit to cover malpractice claims.

Where are medical malpractice cases filed in Florida?

Almost all medical malpractice cases are filed in state court because it’s state laws that govern medical malpractice cases. They can be filed in federal court under a narrow set of circumstances. However, if the patient is a Florida resident suing for malpractice against a Florida doctor and/or a Florida hospital, then the case will most likely be heard in state court.

How do I get my medical records?

All patients have the right to see their own medical records. In almost all cases, patients have the right to copies of their own medical records upon request. Health care providers have to give a patient their own medical records within 30 days of the request. A health care provider may charge you for the copies and postage, however. If your lawyer asks for them on your behalf, then the health care provider must send them your medical records.

Your health care provider is required to give you everything they have, including records received from other health care providers.

What is Florida’s Wrongful Death Act?

The Florida Wrongful Death Act is a statute granting the next of kin the right to sue on behalf of the deceased’s estate for damages if the deceased died due to someone’s negligence, wrongful act or breach of contract.

Can a minor file a Florida wrongful death claim?

A minor, represented by a parent or guardian, can bring a wrongful death claim in Florida so long as the minor is next of kin and therefore lawfully entitled to bring a wrongful death claim.

Can I sue my doctor for birth injuries?

You can, depending on whether detecting or preventing the birth injury was part of your doctor’s standard care. The cause of most birth defects is unknown, but for those that are known, the main causes are genetic and environmental factors. However, if the doctor’s prenatal care wasn’t adequate and caused an avoidable birth defect, then the parents may have a claim against the doctor.

What is an expert affidavit?

An expert affidavit is a statement from an expert in a given field attesting to a claim. In the case of medical malpractice, an expert affidavit is from a doctor in the same field as the defendant, attesting to the validity of the claim of malpractice. This has to be sent with the notice of intent. The affidavit attests to the plaintiff’s reasonable grounds to sue for medical malpractice. The requirement of an expert affidavit is meant to keep frivolous lawsuits from being filed.

Have More Questions? Contact Us For Answers.

If you have other questions or need more information about any of the topics covered above, then feel free to reach out to us at Kaire & Heffernan, PLLC by calling 305-376-7860 or contacting us online. We are here to help. Se habla español.