Medical Malpractice FAQ’s

Do I Have a Case?

One of the Most Common asked questions from potential Medical Malpractice clients is, “Do you think I have a case”?

To which my honest response is: “I am not sure”

The reason I may not be sure is that medical malpractice cases must be reviewed by experts. The cases where a doctor leaves a foreign instrument inside a patients body following surgery or where a doctor operates on the wrong body part are the obvious cases of medical malpractice. But not all cases are that obvious, and that is why you need a Medical Malpractice lawyer that 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 shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as 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.

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 go 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, 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 and have prior experience treating similar patients; and actively practiced or taught in that specialty during the 3 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, the expert witness must have devoted professional time during the 5 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, the expert witness must have devoted professional time during the 3 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 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?

Health care provider” means any:

• 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;
• or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

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 he/she is supposed to be doing, not to injuries that result from negligent acts.

What are defenses to a medical malpractice lawsuit?

• The healthcare provider did not deviate from the standard of care
• Any deviation from the standard of care did not cause the injuries complained of
• 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
• Statute of Limitations

What is the statute of limitations for medical malpractice cases?

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

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; or
• Loss of earning capacity in the future-If you are working and earning less than 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, you are entitled to recover:

1. Widow’s Damages –
   1. Loss of Decedent’s Companionship and Protection
   2. Mental Pain and Suffering from date of injury
   3. Loss of Support and Services from date of injury to date of death (w/ interest)
   4. Future Loss of Support and Services from date of death (at present value)
   5. Medical and funeral expenses due to decedent’s injury/death if paid by survivor

2. Children’s Damages –
   1. Loss of Support and Services from date of injury to date of death (w/interest)
   2. Future Loss of Support and Services from date of death (at present value)
   3. Minor children only (under 25), may also recover loss of parental companionship, instruction, and guidance AND mental pain and suffering from date of the injury

3. Parents’ Damages for loss of minor child –
   1. Mental pain and suffering from date of injury
   2. Medical and funeral expenses due to decedent’s injury/death if paid by survivor

Important distinctions about Medical Malpractice Wrongful Death Claims

• Adult children(25 or older) CANNOT recover lost parental companionship in medical malpractice claims
• Parents of a deceased adult child (25) CANNOT recover mental pain and suffering in medical malpractice claims
• We cannot stress the importance of the meticulous handling of a medical malpractice case enough, whether it occurred in Miami, Florida, or elsewhere. Contact Kaire & Heffernan, LLC today. Mark Kaire and his staff are happy to assist you in your time of need.