Medical Malpractice Resources And FAQ

Although many negligent health care practitioners are never held accountable for their mistakes, our lawyers make it their mission to do so. At Kaire & Heffernan, PLLC, in Miami, our medical malpractice attorneys are experienced and aggressive advocates for our clients. If you have been injured by a medical mistake, then they will fight to make sure that you receive the benefits and compensation you are entitled to receive.

Commonly Asked Questions About Medical Malpractice

Our team understands that if you are considering a medical malpractice claim, then you probably have a lot of questions. Here, our lawyers answer some of the most frequently asked questions. For answers to your specific questions, our attorneys are available by appointment for an initial consultation.

Do you think I have a case?

This is one of the most commonly asked questions from potential medical malpractice clients. The honest response to that question is that we don’t know right away. Medical malpractice cases must be reviewed by experts. The cases where a doctor leaves a foreign instrument inside a patient’s body following surgery or where a doctor operates on the wrong body part are obvious cases 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 the most qualified experts in the country to help you prove your case.

What is medical malpractice in Florida?

Medical malpractice is when the actions of a health care provider represent a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider is the level of care, skill and treatment that, in light of all relevant surrounding circumstances, is recognized as being acceptable and appropriate by reasonably prudent similar health care providers. Simply stated, medical malpractice is when the treatment rendered by a health care provider is below the standard of care. The standard of care is that which is reasonable under the circumstances, and it is for this very reason that experts are needed to testify in medical malpractice cases.

Who is a medical malpractice ‘expert’ and why do I need one?

Unlike other negligence cases, in which the injured party can simply file a lawsuit, medical malpractice cases must go through 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., who 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 either 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 and have prior experience treating similar patients. The witness must have also 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 a health care provider?

A health care provider for purposes of a medical malpractice claim can be any of the following:

  • Hospital, ambulatory surgical center or mobile surgical facility
  • A birth center
  • Medical doctor (MD)
  • Osteopath (DO)
  • Chiropractor (DC)
  • Podiatrist (DPM)
  • Optometrist
  • Nurse
  • Midwife
  • A clinical lab
  • A health maintenance organization certificated under Part I of Chapter 641
  • A blood bank
  • A plasma center
  • An industrial clinic
  • A renal dialysis facility

Any professional association partnership, corporation, joint venture or other association for professional activity by health care providers can be considered a health care provider for purposes of a medical malpractice case.

What is informed consent?

A physician must follow the standard of care in giving you information prior to performing treatment on you. In Florida, the standard is determined by what information a reasonable doctor would give the patient, not what information a patient thinks is important. Usually, you must sign a form indicating your consent prior to anesthesia and surgical procedures. Consent to perform surgery is not consent to perform negligent surgery. A patient consents only to the risks that occur when the physician is doing what they supposed to be doing, not to injuries that result from negligent acts.

What are the defenses to a medical malpractice lawsuit?

There are several different defenses that can be used in a medical malpractice lawsuit, including the following:

  • The health care provider did not deviate from the standard of care.
  • Any deviation from the standard of care did not cause the injuries in the complaint.
  • The injuries were caused by an unavoidable process.
  • The plaintiff was partially or entirely at fault.
  • The injuries were caused by the negligence of someone else.
  • The statute of limitations time frame has already passed.

In any malpractice case, the provider can argue that the injuries were not caused by their mistake or that the plaintiff’s own actions caused or contributed to the injury. There are also strict filing deadlines for medical malpractice claims.

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What is the statute of limitations for medical malpractice cases?

Medical malpractice actions have strict filing deadlines, or statutes of limitations. A claim for medical malpractice must be filed within two years from the time of the incident or injury, or within two years from the time the incident is discovered or should have been discovered. However, a medical malpractice claim must not be filed later than four years from the date of the incident or mistake.

What sorts of damages can I get if my medical malpractice case is successful?

If you prevail in a medical malpractice case in Florida, then 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)

In a wrongful death action that is based on a medical malpractice claim, you are entitled to recover widow damages to account for the loss of companionship and protection, mental pain and suffering, and loss of services and support (present and future) in addition to compensation for medical and funeral expenses. For a wrongful death action that is based on the loss of a child or parents, you can also get damages for pain and suffering and funeral expenses.

How common is medical malpractice?

In its report, “To Err Is Human,” the National Academies of Sciences (NAS) estimated that up to 98,000 patients die in hospitals due to medical malpractice. Public Citizen, which also issued a report on the subject, suggested that deaths due to preventable medical errors exceed those attributable to motor vehicle accidents, breast cancer or AIDs.

It appears that the number of medical malpractice claims being paid has dropped significantly. According to the True Cost of Healthcare, in 2001, there were over 16,000 claims paid. In 2016, that number was less than 8,500. The average amount paid for a successful claim also dropped by approximately 23% in that time period.

Other facts and statistics include the following:

  • The number of medical malpractice claims that resulted in payouts of less than $500,000 has dropped nearly 55% since 2001. The frequency of larger claims against health care providers has remained constant.
  • In the Medscape Malpractice Report for 2017, 13% of the 4,000 doctors surveyed admitted to being sued for malpractice while 48% were named as co-defendants.
  • The Medscape report found that the top five medical specialties that involved the highest number of lawsuits were surgery, OB-GYN and women’s health, otorhinolaryngology (ear, nose and throat specialists), urology and orthopedics.

Medical malpractice suits have been blamed for rising health care costs, as physicians have had to purchase more expensive insurance policies in order to protect themselves from high jury awards. To some degree, allowing medical malpractice lawsuits is necessary to protect patients from negligence by doctors, but most states have decided that there is a reasonable limit to what a patient should receive if they’re injured by a doctor’s negligence.

Medical Malpractice Damage Caps By State

Only 16 states have not enacted legislation placing caps on medical malpractice claims. Twenty-nine states have placed limits on noneconomic damages only. In those states, there is a cap on what can be awarded for things like pain and suffering, but there is still no limit to what a patient can recover for verifiable economic losses like medical costs and lost incomes. In the remaining five states, there is a single umbrella limit on all damages, both economic and noneconomic. These caps range from $250,000 in Indiana to $2.5 million in Nebraska.

Alabama
Economic: None
Noneconomic: None
Alaska
Economic: None
Noneconomic: $250,000
Arizona
Economic: None
Noneconomic: None
Arkansas
Economic: None
Noneconomic: None
California
Economic: None
Noneconomic: $250,000
Colorado
Economic: $1,000
Noneconomic: $300,000
Connecticut
Economic: None
Noneconomic: None
Delaware
Economic: None
Noneconomic: None
District of Columbia
Economic: None
Noneconomic: None
Florida
Economic: None
Noneconomic: $750,000
Georgia
Economic: None
Noneconomic: $350,000
Hawaii
Economic: None
Noneconomic: $370,000
Idaho
Economic: None
Noneconomic: $250,000
Illinois
Economic: None
Noneconomic: $500,000
Indiana
Umbrella: $250,000
Iowa
Economic: None
Noneconomic: None
Kansas
Economic: None
Noneconomic: None
Kentucky
Economic: None
Noneconomic: None
Louisiana
Umbrella: $500,000
Maine
Umbrella: $500,000
Maryland
Economic: None
Noneconomic: $755,000
Massachusetts
Economic: None
Noneconomic: $500,000
Michigan
Economic: None
Noneconomic: $433,000
Minnesota
Economic: None
Noneconomic: None
Mississippi
Economic: None
Noneconomic: $500,000
Missouri
Economic: None
Noneconomic: $250,000
Montana
Economic: None
Noneconomic: $250,000
Nebraska
Umbrella: $2.445 million
Nevada
Economic: None
Noneconomic: $350,000
New Hampshire
Economic: None
Noneconomic: None
New Jersey
Economic: None
Noneconomic: None
New Mexico
Umbrella: $600,000
New York
Economic: None
Noneconomic: None
North Carolina
Economic: None
Noneconomic: $500,000
North Dakota
Economic: None
Noneconomic: $500,000
Ohio
Economic: None
Noneconomic: $250,000
Oklahoma
Economic: None
Noneconomic: $350,000
Oregon
Economic: None
Noneconomic: $500,000
Pennsylvania
Economic: None
Noneconomic: None
Rhode Island
Economic: None
Noneconomic: None
South Carolina
Economic: None
Noneconomic: $350,000
South Dakota
Economic: None
Noneconomic: $500,000
Tennessee
Economic: None
Noneconomic: $750,000
Texas
Economic: None
Noneconomic: $250,000
Utah
Economic: None
Noneconomic: $550,000
Vermont
Umbrella: $2.15 million
Virginia
Economic: None
Noneconomic: None
Washington
Economic: None
Noneconomic: None
West Virginia
Economic: None
Noneconomic: $250,000
Wisconsin
Economic: None
Noneconomic: $750,000
Wyoming
Economic: None
Noneconomic: None

Medical Malpractice Statistics

Medical malpractice occurs when a health care provider such as a doctor, nurse or nurse practitioner provides you with care that does not meet accepted standards of practice and causes death or injury. In most cases, there is some medical error involved. Examples include:

  • Failure to diagnose a life-threatening condition or diagnosing it as something else and providing ineffective treatment
  • Prescribing the wrong medication or administering an incorrect drug dosage
  • Leaving medical instruments in a patient’s body after surgery
  • Making surgical errors that result in the loss of use of a body part or parts
  • Causing childbirth injuries that result in Erb’s palsy, shoulder dystocia, brain damage and other complications

Medical malpractice can take place in and out of a hospital setting. No matter where it happens, though, it can change your life forever.

Medical Malpractice In Florida

Florida occupies a prominent position in many medical malpractice statistics compilations. A data table compiled by the True Cost of Healthcare estimated that between 2012 and 2016, the state averaged 51.86 claims per 1 million residents, ranking it No. 8 in the nation. In addition:

  • The Florida population was 20.63 million in 2017.
  • The average annual claim per 100 physicians was 1.5 in 2016, placing Florida at No. 9 on that list.
  • In 2017, there were 82,939 doctors practicing in Florida.
  • The average malpractice cost per capita was $11.97 in 2017.

Payments made to patients in Florida medical malpractice claims:

  • Claims totaling 1,265 were paid for all medical providers in Florida in 2018, with a total of over $356 million. Of that total, 865 claims (and an estimated $300 million) involved MDs and DOs.
  • After adjustment for inflation, the total payments made was significantly lower than in 2002, when the amount paid out for all providers was $605 million.

Adverse actions reported for Florida physicians due to medical malpractice claims:

  • In 2018, 420 complaints were filed against MDs and DOs.
  • Forty-one physicians lost clinical privilege and panel membership.
  • Only one physician lost professional society membership.
  • Twenty-eight physicians were involved with the Drug Enforcement Administration (DEA).
  • Fifteen physicians were excluded from the Office of Inspector General, U.S. Department of Health and Human Services (HHS-OIG).

Payments made for Florida medical malpractice claims:

  • In 2018, a total of 948 medical malpractice payment claims were made.
  • Fifteen of the payments in 2018 were greater than $2 million.
  • The highest range of payments was in the $250,000 to $499,000 range, with 302 payments made in this range.
  • In 2003, payments in this same range numbered 324.
  • Between 2000 and 2018, 2003 saw the highest number and amount of medical malpractice payment claims.
  • The years 2003 and 2018 saw the highest number of claims over $2 million paid, with 15 payments made each year.
  • The total amount of money paid out for medical malpractice claims in 2018 was $299.46 million.
  • In 2002, the total amount of money paid out was $ 386.93 million.

Medical malpractice claims are decreasing over time, according to the True Cost of Healthcare. Court statistics show:

  • The plaintiff win rate in medical malpractice trials is roughly 23%, much lower than for other personal injury cases, for which the win rate is 59%.
  • 99% of medical malpractice cases include a jury trial, whereas only 93% of other personal injury trials include a jury.
  • Medical malpractice trials have a mean length of five days, while other personal injury lawsuits have a mean length of two days.
  • Medical malpractice jury awards are 17 times higher than the average awards in tort jury trials. These high amounts may be partially due to the fact that wrongful death was alleged in two-fifths of trials in which the plaintiffs won.

Florida Supreme Court Ruling: Medical Malpractice Caps Are Unconstitutional

For years, Florida’s medical malpractice laws capped noneconomic damages (such as mental anguish, pain and suffering, disfigurement and loss of companionship) at $500,000 (or $1 million if the negligence caused death or a vegetative state) for claims against doctors and other health care providers and $750,000 against non-practitioner defendants. Then, in June 2017, the Florida Supreme Court ruled that these caps were unconstitutional because they arbitrarily reduced compensation for victims of the most drastic injuries.

Florida’s Three Strikes Law: Medical License Revocation

Florida has a “three strikes” rule that is supposed to automatically revoke the medical license of any doctor with three malpractice judgments. Critics have claimed that this law’s effectiveness is questionable because so many state doctors being sued for malpractice settle the case. A May 2019 investigation by ABC Action News found that around 120 physicians had at least three malpractice claims filed against them over the past decade but only two had lost their licenses.

These widely publicized findings gave the impression that Florida does not take the matter of medical license revocation seriously. Perhaps the next person harmed by one of these doctors could be you or a loved one.

A Florida Medical Malpractice Attorney Can Help

If you or someone you love has been seriously injured as the result of a surgical error, incorrect medication, misdiagnosis or other act of medical malpractice, please contact our medical malpractice team at Kaire & Heffernan. Call 305-376-7860 or reach out to us online.

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