Medical Malpractice FAQ

What is Medical Malpractice?

Medical malpractice, otherwise known as medical negligence, occurs when a medical care provider including a physician, chiropractor, hospital, nurse, or other healthcare provider, does something or fails to do something which is considered the accepted standard of care relative to diagnosing and treating a particular medical condition. To pursue a claim for medical malpractice, there must be a physician-patient relationship, and a breach of the standard of care which caused damages.

Who can be liable for Medical Malpractice?

Any healthcare provider can be sued for medical malpractice depending on the circumstances. This includes physicians such as primary care providers or specialists such as cardiologists, pulmonary medicine physicians, infectious disease specialists, gastroenterologists, etc. In many instances, medical negligence occurs in the course of care provided during a hospital stay. Hospital-based physicians such as emergency department physicians, anesthesiologists, critical care physicians or radiologists, may be involved in providing negligent care. A claim for medical negligence can be pursued against these physicians as well as the hospital where they work. This is also true of the hospital nursing staff and other healthcare providers working in the hospital.

If I signed a Consent Form prior to receiving treatment and suffered complications, do I still have a claim for Medical Malpractice?

There are many potential complications which can occur from medical treatment, particularly surgical procedures. Many of these complications can occur even if there is no negligence by the healthcare provider. However, even though there may be known potential complications of a procedure, these complications can also happen as the result of negligence by the healthcare provider and, if that is the case, a claim can be pursued.

What are common types of Medical Malpractice?

Common types of Medical Malpractice include:

Misdiagnosis: Failure to correctly diagnose a condition can lead to incorrect treatment and worsening of the patient's condition.

Delayed Diagnosis: Delays in diagnosis can result in the progression of a disease or condition, reducing the chances of successful treatment.

Surgical Errors: Mistakes made during surgery, such as operating on the wrong site or leaving surgical instruments inside the body.

Medication Errors: Incorrect prescription, dosage, or administration of medication, leading to adverse effects or ineffective treatment.

Birth Injuries: Injuries sustained by the baby or mother during childbirth, often due to improper handling or negligence.

Hospital Malpractice: Negligence by hospital staff, including inadequate staffing, poor hygiene, and failure to follow policies and protocols.

Anesthesia Errors: Errors in administering anesthesia, which can lead to severe complications or death.

Nursing Home Neglect: Failure to provide adequate care in nursing homes, resulting in harm or injury to residents.

Emergency Room Errors: Mistakes made in the fast-paced Emergency Room environment, such as misdiagnosis or failure to treat in a timely manner.

Radiology Errors: Incorrect interpretation of radiological scans, leading to misdiagnosis or delayed treatment.

What do I need to prove to win a Medical Malpractice case?

To prevail in a claim for medical malpractice, there must be a physician-patient relationship between you and the healthcare provider at issue. It is the Plaintiff’s burden to prove by the greater weight of the evidence that the healthcare provider breached the applicable standard of care and that the breach was the cause of an injury causing damages. Damages include past and future medical expenses, past lost wages or future lost earning capacity, and pain and suffering type damages.

What damages can be recovered in a Medical Malpractice case?

Typically, both economic and non-economic damages can be recovered. “Economic” damages include past and future medical bills, cost of durable medical equipment, cost of home healthcare, lost wages, and lost future earning capacity. “Non-economic” damages are otherwise known as pain and suffering damages. These include pain and suffering, loss of enjoyment of life, and emotional duress. The spouse of a person injured by medical malpractice can also make a claim for loss of consortium which is the companionship and fellowship of a spouse as well as affection, solace, comfort and society.

In rare instances, if it can be shown that the medical malpractice was particularly egregious or that the healthcare provider acted intentionally or recklessly, punitive damages may be awarded to punish the healthcare provider for their gross negligence.

Are there limits on the amount that can be recovered in a Medical Malpractice lawsuit?

There currently is no limit on the amount of damages that can be recovered in a medical malpractice lawsuit. However, the damages must be proven by a preponderance of the evidence. Once exception is where the healthcare provider requests binding arbitration at the end of the presuit investigation. If the healthcare provider requests binding arbitration, the non-economic damages for pain and suffering can be limited to $250,000 per claimant. While there is no limit on the amount of economic damages for medical bills or lost earnings, there are certain limitations which may come into play if the healthcare provider requests binding arbitration.

What do I have to do to pursue a claim for Medical Malpractice?

In Florida, before a lawsuit can be filed for medical malpractice, the Plaintiff must have the medical records reviewed by an appropriate medical expert to determine whether there is a basis for a claim of medical negligence. If an expert reviews the records and believes there is a basis for a claim, and then signs an affidavit attesting to that fact, a notice of intent to initiate litigation is then sent to the healthcare provider advising of the Plaintiff’s intent to bring a claim. This triggers a 90-day investigation. At the end of the 90-day investigation, the healthcare provider can either deny the claim by providing an affidavit of their own expert, or they can request binding arbitration or make a settlement offer. If the claim is denied, Plaintiff then will file a lawsuit and initiate litigation.

How do I know if I have a Medical Malpractice case?

To determine if you have a Medical Malpractice case, consider the following:

- Did the healthcare provider fail to meet the standard of care?
- Did this failure directly cause injury or harm?
- Did the injury result in significant damages (e.g., pain, suffering, medical bills, lost wages)?

A Medical Malpractice attorney can help evaluate your situation and determine if you have a viable case.

What should I do if I suspect Medical Malpractice?

If you suspect Medical Malpractice, take the following steps:

1. Seek a second medical opinion to address your health concerns.
2. Obtain copies of all medical records related to the incident.
3. Document everything, including symptoms, treatments, and communications with healthcare providers.
4. Contact Bonner Law to discuss your case and explore your legal options.

How long do I have to file a Medical Malpractice claim?

The Statute of Limitations for filing a Medical Malpractice claim varies by state. In Florida, you generally have two years from the date of the incident or from when the injury was discovered (or should have been discovered) to file a claim. Consult with Bonner Law as soon as possible to ensure your claim is filed within the appropriate time frame.

What damages can be recovered in a Medical Malpractice case?

Damages in a Medical Malpractice case can include:

- Economic damages: medical expenses, lost wages, and future medical costs.
- Non-economic damages: pain and suffering, emotional distress, and loss of enjoyment of life.
- Punitive damages: in cases of gross negligence or intentional harm, additional damages may be awarded to punish the wrongdoer.

How can a Medical Malpractice attorney help?

A Medical Malpractice attorney can assist by:

- Investigating your case and gathering evidence.
- Consulting medical experts to establish the standard of care and identify breaches.
- Negotiating with insurance companies and healthcare providers.
- Representing you in court if a settlement cannot be reached.

What are the challenges in proving Medical Malpractice?

Proving Medical Malpractice can be challenging due to:

- The complexity of medical evidence and terminology.
- The need to demonstrate a direct link between the healthcare provider’s actions and the injury.
- Resistance from insurance companies and healthcare providers.
- The necessity of expert testimony to establish the standard of care and breaches.
- The high cost of litigating these claims.

What are the common causes of Birth Injuries?

Common causes of birth injuries include improper or excessive traction during delivery, improper use of forceps or vacuum extractors, failure to monitor fetal distress, delayed C-sections, and improper handling of complications during labor and delivery.

What is Nursing Home Negligence?

Nursing home negligence involves the failure to provide adequate care to residents, resulting in physical or emotional harm. This can include failing to provide necessary medical treatment, food, water, hygiene, or assistance with daily activities, among other things.

What should I look for in a Medical Malpractice attorney?

When selecting a Medical Malpractice attorney, consider the following:

- Experience and track record in handling Medical Malpractice cases.
- Knowledge of medical terminology and procedures.
- Ability to access and work with medical experts.
- Compassion and dedication to advocating for your rights.

What are examples of Medical Malpractice?

Medical malpractice typically takes the form of a failure to timely diagnose a medical problem and then treat that medical problem. Medical negligence can also be in the form of a misdiagnosis or a surgical error. Medical malpractice can lead to injuries to a pregnant mother during the pregnancy or to the child at the time of birth. A failure to timely diagnose and treat often occurs in the setting of the emergency department at a hospital. Medication errors also occur in the hospital setting as do surgical or anesthesia errors.

If I suffered a complication from my medical care, do I have a claim for Medical Malpractice?

The short answer is that you may or may not have a claim. Bad outcomes can occur even with the best care. However, many times complications or bad outcomes are avoidable if the healthcare providers meet the standard of care. Whether there is a claim for medical malpractice will depend on whether the healthcare provider fell below the applicable standard of care.

How are surgical errors proven in a Medical Malpractice case?

Proving surgical errors involves demonstrating that the surgeon deviated from the accepted standard of care, resulting in harm to the patient. This requires expert testimony to establish what a competent surgeon would have done differently. Failures or deviations by the surgeon are demonstrated by testimony of the surgeon or others in the room and documentation in the medical chart.

How long does it take to pursue a case for Medical Malpractice?

Most medical malpractice claims settle before trial. However, it routinely takes anywhere from 1 to 3 years for a medical malpractice case to be litigated to the point where it is either settled or taken to trial.

What is the statute of limitations for a Medical Malpractice lawsuit?

Generally, a claim for medical malpractice must be brought within two years from the date of the incident giving rise to the claim, or within two years of the time that the claim for negligence was discovered or, with the exercise of due diligence, should have been discovered. Typically, the question of when the statue of limitations began to run on a claim for medical negligence will be an issue to be resolved by a jury.

What is the statute of repose for a Medical Malpractice lawsuit?

While the statute of limitations provides that a claim should be brought within two years of the date of the incident or within two years of the date that the negligence was discovered or should have been discovered, the statute of repose provides that the claim should be brought within four years of the date of the incident regardless of when the claim was discovered. There are, however, exceptions where there is a fraudulent concealment of the negligence or in claims involving a child.

Do I have to pay an attorney fee up front to pursue a claim?

We only are paid if there is a recovery at the end of the case through a settlement or a judgment. This is called a contingency fee. The fee is contingent on winning the case. Bonner Law will advance all costs which are needed to pursue the case and, if there is no recovery at the end of the case, the client will not have any responsibility for these costs or any fees. If there is a recovery at the end of the case, then the costs will be reimbursed in addition to the attorney’s fees which are based on a percentage of the recovery. Pursuant to the Florida Bar Guidelines, the typical contingency fee starts at 33 1/3%. There is then a sliding scale depending on the amount that is recovered.

What is a contingency fee?

Essentially, if there is no recovery, there is no fee. The attorney fee is contingent upon there being a recovery. If there is a recovery, then attorney’s fees based on a percentage of the recovery are paid when the monies from the settlement or judgment are distributed. Further, all costs which are incurred in pursuing the claim will be advanced by Bonner Law. If there is no recovery at the end of the case, Bonner Law will write off those costs. The client has no responsibility for those costs in the event there is nothing recovered. However, if there is a recovery at the end of the case, the costs will be reimbursed from whatever recovery is obtained in addition to the contingent attorney fee.

What is the role of radiology in Medical Malpractice?

Radiology errors occur when radiologists misinterpret x-rays, MRIs, CT scans, or other imaging tests, leading to incorrect or delayed diagnoses. These errors can result in a failure to diagnose, inappropriate or delayed treatment, and a worsening of the patient’s condition.

Can anesthesia errors be considered Medical Malpractice?

Yes, anesthesia errors can be considered Medical Malpractice if they result from negligence, such as incorrect dosage, failure to monitor the patient, or not recognizing adverse reactions. These errors can lead to severe injury or death.

What are the steps involved in filing a Medical Malpractice claim?

Filing a Medical Malpractice claim involves:

1. Consulting with a Medical Malpractice attorney.
2. Obtaining and reviewing medical records.
3. Consulting medical experts to evaluate the standard of care.
4. Serving a Notice of Intent letter and completing a presuit screening.
5. Filing a formal complaint or lawsuit.
6. Engaging in pre-trial discovery, including depositions and evidence gathering.
7. Negotiating settlements or proceeding to trial if necessary.

How does Emergency Room Malpractice occur?

Emergency Room malpractice can occur due to misdiagnosis, delayed treatment, failure to order necessary tests, or improper discharge of patients. The fast-paced environment can lead to mistakes that cause significant harm to patients.

Can I sue a hospital for Medical Malpractice?

Yes, you can sue a hospital for Medical Malpractice if the hospital or its employees or agents were negligent and their actions contributed to your injury. The hospital might also be responsible for having improper policies, inadequate staffing, improper maintenance of equipment, or failure to ensure competent medical staff or other things.

What constitutes a Medication Error?

Medication errors can include prescribing the wrong medication, incorrect dosage, failure to recognize drug interactions, and errors in medication administration. These errors can lead to serious health complications or death.

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