Florida Medical Malpractice Guide
Combat Medical Malpractice: Know Your Rights to Medical Care
If you or a loved one has been injured due to the negligence of a medical professional, you might be scared and furious at the situation. The Florida Medical Malpractice Guide was created by Tampa Personal Injury Attorney Betsey Herd to help shine some light down a dark tunnel.
We like control. We like to know what we’re eating and where our news is coming from. We like to think we can control our weight and control our habits. We like to control our environments, and the history of our inventions proves it, from air conditioning to clap-on lights to Netflix and Amazon Echo.
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It can be unsettling, then, to enter a situation in which you give up all control. Sometimes we seek the thrill of this feeling – as on a roller coaster, or skydiving. Sometimes giving up control can be a merely boring and mildly anxious experience, as on an airplane. But there is probably no case of forfeiting control more extreme than when you entrust yourself to a medical professional’s care. Quite literally everything is at stake: your money, your time, your body, your mind – even your life, and your ability to provide for and be with the ones who love you. You are putting yourself in someone else’s care because you aren’t an expert. If you undergo physical therapy, you trust that it will heal and not hurt you. If you’re taking a new medication, you trust that whatever chemical processes it triggers within you will help and not harm. And if you’re going into surgery, you accept the anesthesia and become more object than individual, a fleshy machine to be fixed, while your mind swims in a suspended dark. You allow all this because you trust your doctor, your surgeon, your therapist. And in most cases you trust because you have no other option.
If you or someone you know has been harmed while in the care of a medical professional, you will be devastated – especially knowing that the injury or illness was beyond your control, in the hands of experts that you trusted. In this situation, though, you do have options. You have a right to the best treatment, practices, and attention modern medicine can provide. If you’re suffering because you didn’t get this, your healthcare provider may be liable for your suffering and your losses. An experienced Florida medical malpractice attorney can help appraise you of your rights, go over the particulars of your case, help you to set realistic expectations, guide you through a settlement or a trial, and give you back some of that lost control.
Knowing Your Rights
There are many – all too common – situations in which a healthcare provider could be liable for your injury, illness, or other suffering. Your medical professionals must provide you with care that meets the standard within your community under the same or similar circumstances of your medical condition. Any failure to provide this care is a breach of duty. Breaches of duty include:
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When you submit yourself to medical care, so much is “out of your hands.” With the right legal counsel, however, you may be able to recover damages including:
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Fighting for your rights can be daunting and complex. Far more stressful than a lawsuit, however, could be struggling to cover new medical expenses resulting from a surgery gone wrong, stretching thin to pay bills when you can’t work, or providing for your family after a loved one’s avoidable death. You might need to file a medical malpractice suit. Luckily, holding medical providers accountable for mistakes and negligence can raise the bar on healthcare reliability and quality of treatment.
It’s important to know, though, that a bad result doesn’t mean you have a case, and doesn’t mean the doctor didn’t perform to the best of his or her ability and provide you with reasonable care. Only a Florida medical malpractice attorney and an independent expert can tell you if your case meets the standards and precedents for a malpractice suit.
Even if a physician admits it was his or her “fault,” that doesn’t mean it was a case of malpractice. If something goes wrong and your physician admits fault, immediately request a copy of your records.
In Florida, the statute of limitations on medical malpractice claims is two years from the point at which you knew or should have known that the incident occurred.
Filing a Medical Malpractice Claim
In the State of Florida, you can’t jump right away into filing a medical malpractice suit. You have to go through a pre-suit process, during which time your attorney will gather all relevant medical records and send these to an expert for independent review. This expert will provide an affidavit, which your attorney will send via certified mail to the medical provider. That medical provider will have 90 days to consult with an attorney and malpractice carrier, and at the end of that period must either admit or deny the claim. If the medical provider denies your claim, your attorney will file a lawsuit.
To win your case, you need to do more than document substandard care. Substandard care per se does not cause damages. You need to prove causation – in other words, that the documented substandard care directly caused physical and/or emotional damages. In general, you also have to demonstrate catastrophic, long term, or permanent damages. If you recover before too far into your suit – and suits will, again, last years – you may only get enough in recoverable damages to pay your attorney and the expert witnesses you hired.
>> How long will a Florida medical malpractice case last?
In Florida, the pre-suit process (explained above) adds a 90-day waiting period before a case can even go to trial. Medical malpractice is one of the more frequently litigated areas of law, which means the courts are backed up. One case could take two to three years if mistakes or acts of negligence are well-documented or obvious, or to five to six years in cases that require deposition of experts from around the country, and conflicting evidence or testimony.
>> How does a court determine damages in a malpractice case?
If you’ve been a victim of medical malpractice, you and your family need compensation. The complexity of malpractice cases, however, requires significant research and testimony from expert witnesses, all of whom must be paid. You can’t pay them out-of-pocket – you’re already struggling. This money has to come from your reward. Because of that, your damages have to rise to a certain level, so you can pay your attorney and expert witnesses and still have compensation left over. As such, it is not generally worth your time to pursue a claim for a minor injury.
>> Are there limits on damages in a malpractice case?
Before 2014 there were caps on noneconomic damages – intangible losses like pain and suffering or loss of companionship for a loved one – in a malpractice suit. A court overturned these caps, at least in wrongful death cases, as unconstitutional – though the precedent may in the future be applied to noneconomic damages in any Florida medical malpractice case.
If a physician admits that the malpractice in the pre-suit phase, the law imposes caps automatically. These caps are $350,000 if you proceed to a jury trial and $250,000 if you agree to arbitrate.
>> What will a Florida medical malpractice case cost me?
Most law firms will not charge you for a consultation, and will often take on the costs of obtaining your medical records and hiring an independent medical expert for you. There will be no cost for an evaluation and investigation, even if the attorney finds you cannot proceed. (But be sure to ask about this – not all attorneys have the same policy.) Most Florida medical malpractice lawyers use contingency fees, taking a percentage of the award or settlement. (That means that if you lose at trial, you won’t have to pay your attorney anything.)
Common Types of Medical Malpractice Cases
Florida Medical Malpractice Guide: Surgical Fires and Other Operational Mishaps
In a surgical situation, three elements are necessary for a fire: an igniter, an accelerant, and fuel. All three elements will be present in most surgeries. Your safety is at risk any time these elements come too close together. The anesthesiologist is responsible for the oxidizer element. The surgeon is responsible for the igniter element. The nurses are responsible for the fuel elements and for facilitating communication amongst the team members. There is an increased risk of fire for any procedure performed to the head, neck and chest.
Surgical fires are not common, but they do occur, and they can be severely damaging. Surgical fires can be either inpatient (inside your body) or onpatient (outside your body). Inpatient surgical fires aren’t always controllable – they might result from bowel gas or other variables. Outpatient fires, however, are unacceptable. If you’ve suffered from an onpatient surgical fire, contact a malpractice attorney. Anaesthesiologists, surgeons, and nurses are all responsible for avoiding these accidents.
All healthcare providers in a surgery should observe a “surgical time-out” before beginning to operate. This gives them a chance to verify that you are the correct patient and that they are going to perform the right operation on the right body part, as well as take measures to prevent surgical fires.
It will be harder to bring a malpractice case against an ER physician, because that physician has no prior history with you, and has no obligation other than to treat the emergency issue. You will need to prove reckless disregard if you are filing a claim against an ER physician.
A birth injury may occur when a physician or hospital nurse provides substandard care during the pregnancy or the birthing process. Devastating effects like paralysis, brain damage, and even death may happen to the mother and/or child. Other birth injuries that may occur include—
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A birth injury may also be the result of the failure of the physician or hospital nurse to maintain cleanliness, communicate a patient’s condition to physicians, monitor and assess conditions, and intervene in a timely fashion.
In most malpractice cases you have two years from the time you knew or ought to have known that the instance of malpractice occurred to file a claim. With a young child that statutory period is extended to the eighth birthday, as children may not be able to understand or express that there is something wrong with them.
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Retinopathy of Prematurity
Some premature babies can develop abnormal blood vessels in the retina, causing the retina to detach and possibly leading to blindness. ROP is sometimes self-corrective, but other cases call for surgery. If a physician catches ROP soon after birth, an ophthalmologist can use a laser to prevent the abnormal blood vessels from growing, scarring, contracting, and detaching the retina.
In some cases, blindness from ROP is avoidable with proper screening and treatment. If your newborn becomes blind because of ROP, the healthcare provider can be liable. It will be necessary for you to consult with an expert Pediatric Ophthalmologist. Avoidable causes of blindness from ROP include:
- Exposing newborns to toxins.
- Improper use of oxygen therapy following birth.
- Failing to provide timely, regular eye exams to high-risk infants.
- Failing to diagnose retinopathy of prematurity when symptoms of this condition are clearly present.
- Failing promptly or adequately to treat retinopathy of prematurity.
Heart Attack Misdiagnosis
A heart attack per se is not actionable. However, you may file a potential claim for misdiagnosis. If a heart attack leaves you with permanent damages, or if you are no longer able to perform certain tasks, you might be able to file a claim for failure to diagnose.
Medical professionals need to address heart attack symptoms responsibly and in a manner consistent with proper standards of a care. Common symptoms of a heart attack include:
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As soon as you or another report your symptoms, your doctor or emergency room professional should immediately administer one or more of the following tests to avoid injury or death:
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If a doctor prescribes the wrong medication or dosage, you may have a claim. If you think a doctor has prescribed you the wrong medication or dosage, confront the doctor immediately. Your concern at this point is your health, not a malpractice suit.
According to the Food and Drug administration, prescription medication errors cause at least one death every day and injure approximately 1.3 million people annually in the United States. A physician or pharmacist might be liable for:
- Prescribing the wrong drug.
- Prescribing the wrong dose.
- Prescribing the wrong concentration.
- Administering a drug too quickly.
- Administering a drug by an improper method.
- Being unaware of the other medications the patient was taking at the same time.
- Failing to warn a patient of an expected drug interaction risk.
One of the most commonly misused medications is Coumadin, also called warfarin, an anti-coagulant or blood thinner used to prevent the body from forming dangerous blood clots. Patients who have atrial fibrillation (irregular heartbeat) or artificial heart valves often take Coumadin. While effective in preventing strokes, heart attacks, deep vein thrombosis (DVT), embolisms, and blood clots, the misuse of Coumadin can put patients’ lives at risk. Doctors must carefully monitor patients taking Coumadin. There is a very thin margin between a patient being helped or harmed by Coumadin. If the level of the medication is too low, the patient is at risk for blood clot formation, strokes, and pulmonary embolisms. If the level is too high, the patient is at risk for severe internal bleeding, hemorrhagic stroke, and death.
Coumadin is of particular danger to pregnant or breastfeeding women. It can cause birth defects in an unborn baby that may include:
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Because of the serious need to monitor Coumadin levels, any negligence in this could make a physician liable for damages and suffering.
Other commonly misprescribed medications include Avandia for diabetes and the anti-inflammatory Vioxx (discontinued).
Pharmaceutical companies may be liable for damages. Likewise the pharmacist. The pharmacist filling your prescription also has an obligation to fill your prescription correctly and answer any questions you have. You may have a claim due to preventable errors including:
- Poor handwriting on prescriptions.
- Similar-sounding names of prescription drugs.
- Confusion about correct dosage amounts and instructions.
- Confusing labeling and package content on both over-the-counter and prescription drugs.
- Use of abbreviations.
Pharmacists are medical experts, too, though. Don’t hesitate to ask them questions.
Necrotizing enterocolitis (NEC) is a gastrointestinal disease, mostly affecting premature infants where infection and inflammation cause destruction of the bowel or part of the bowel. This disease is the most common and serious gastrointestinal disorder among premature infants. It usually occurs during the first two weeks of life, after feeding has begun. Infants with this disease are more prone to infection and have some difficulty with blood and oxygen circulation and digestion.
The symptoms of NEC may include:
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Complications from Anaesthesia
If a patient is going to be fully sedated, the anaesthesiologist may or may not be present for the entire procedure. He or she is, however, responsible for the conduct of the nurse anaesthetist, who will be present the entire time.
Anaesthesia awareness occurs when a patient retains a level of awareness under anaesthesia during an operation. This could be because of insufficient anaesthesia or because of a patient’s resistance. Anaesthesia awareness is not grounds for a claim, but if the anaesthesiologist notices your awareness, he or she is duty-bound to correct it.
Failure to Diagnose or Misdiagnosis
When you are injured or sick you will show physical signs and complain of symptoms, and your medical professional is obligated to recognize those signs and symptoms. If your condition worsens or leads to damages, you may file a claim. The success of that claim will depend on the particulars of your case. Failure to diagnose a new, rare, or relatively unstudied condition is not as much of a liability as failure to diagnose a common condition with symptoms generally understood.
You cannot, generally, file a claim against an Emergency Room physician for failure to diagnose. It is not the ER doctor’s responsibility to diagnose you; an emergency medical provider’s duty is only to treat emergency conditions. You may leave with instructions to visit your general practitioner or another doctor, who will have the responsibility to diagnose.
If you suspect that someone you love died because of medical malpractice, you need to arrange for an autopsy immediately. If you intend to file a claim, it will be your responsibility to prove the cause of death, and to prove that this resulted from a medical provider’s negligence.
If you do have a claim, you will have to create an estate for the decedent. Often the estate lawyer will wait for the conclusion of the malpractice suit to collect his or her fees.
However, if the decedent has not left behind a spouse or a child under the age of 25, there are no recoverable damages.
Florida Medical Malpractice Guide: FAQs
>> What should I look for when picking an attorney?
Experience matters most. You aren’t just looking for an attorney with plenty of court time and peer recommendations, either, though these things are important. Generally, an attorney with some medical background will be more successful in Florida medical malpractice cases. All this information is available online, but you shouldn’t stop there. Remember that you may spend years working with this person. You should meet face-to-face before deciding. You need someone you can trust, someone you’re comfortable talking to, someone who won’t bully you into a course of action you don’t want to take, and, ideally, someone you like.
>> How do I know if my attorney is doing a good job?
When you contract with an attorney, that attorney will give you a “statement of client’s rights” outlining what you should expect. Make sure you understand this, and that your attorney lives up to the letter. You should also stay informed at every step of the process, and take an active role in decision making, especially regarding settlements.
>> What are the consequences of a malpractice case for medical professional?
In Florida, a healthcare provider can lose his or her license to practice after “three strikes.” What constitutes a strike, though, is not always certain. When you file a complaint, that complaint goes to the Florida Board of Medicine, which will generally not sanction an individual for an alleged medical error, but rather for documenting errors or serious, proven cases of malpractice. However, if a physician has multiple outstanding complaints, your case may directly result in the loss of a license.
>> Can I get an apology from my healthcare provider?
Aside from some peace of mind and a sense of closure, the only thing a civil trial can give you is a monetary reward. A jury cannot force an apology from anyone.
>> Do I have a claim if I suffered Florida medical malpractice but have recovered?
In this case, you would likely spend more to get expert witnesses than you would receive in compensation. You will have wasted your time. Still, if you feel strongly that you have a claim despite an improvement in your health, seek a consultation with an experienced attorney.
>> How can I help avoid or combat medical negligence and malpractice?
The steps you can take to preventing medical malpractice are, for the most part, the same steps you should be taking to help your healthcare providers treat you. Be an advocate for yourself (or for your loved one). Do research. Ask questions. Tell your healthcare providers everything. And keep documentation.
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If you or a loved one has been injured due to a medical error made by a doctor or medical professional, contact Tampa Attorney Betsey Herd for guidance on your case.