The Law of Medical Malpractice
At Levin Papantonio, our Medical Malpractice Lawyers focus their personal injury practice on representing those injured by medical malpractice and professional negligence, whether by a physician, doctor, nurse, hospital, emergency room or other medical provider; and includes anesthesia errors, birth defects, brain injuries, cerebral palsy, delay in treatment, failure to diagnose, failure to monitor, failure to resuscitate, fetal distress, medication errors, surgical mistakes, and other medical procedures.
What is Medical Malpractice
Medical malpractice or professional negligence is the failure of a health care provider to render care in keeping with good and accepted medical techniques and principles. In other words, a doctor, nurse or technician does something not in keeping with good practice, or fails to do something necessary for a patient's good care. This can take the form of surgical errors, anesthesia errors, wrong diagnosis, late diagnosis, failure to diagnose; wrong treatment; wrong medication; failure to follow accepted protocols; failure to make use of available technology; and a host of other situations where the medical care given - or not given -- caused damaged to the patient.
It is a shocking fact that Harvard studies estimate that twice as many people die each year in this country as a result of medical malpractice (approximately 98,000) than die in car accidents. Worse, for every medical error reported, it is estimated that at least 50 go unreported.
No one expects the medical profession to be infallible, but it is entirely appropriate to expect and receive a standard of care when we place ourselves in the hands of the medical profession. We want to - and should be able to-trust their level of knowledge, skill, and expertise. Indeed, it is why we seek medical care in the first place.
Failing to report a case of medical malpractice does not serve the medical profession nor the public. In fact, to the contrary, the more we know about surgical errors, medical mistakes, misdiagnoses and incompetent doctors, the safer health care becomes. Putting patients at risk by substandard medical care is something that needs to be stopped or eliminated at much as possible. Failure to act when you suspect that some form of malpractice might have taken place in your medical care only increases the risk for other patients.
Medical malpractice or medical negligence can exist in any situation; however, the following areas are especially prone to medical errors:
- Acute Abdomen/Surgical Abdomen
- Aspiration Pneumonitis/Mendelson's Syndrome
- Bacterial Meningitis/Spinal Meningitis
- Beta Strep Testing for pregnant women
- Birth Injuries
- Breast Cancer
- Fetal Anoxic Brain Injury/Faulty Fetal Heart Monitoring
- Gastric Bypass Surgery/ Roux-En-Y Procedure/Stomach Stapling
- Hypertensive Crisis/High Blood Pressure Crisis
- Non-Small Cell Carcinoma/Lung Cancer Rapid Assays
Who Can Sue for Medical Malpractice
When a patient is injured due to medical negligence, the patient may bring a personal injury lawsuit, and make a claim for pain and suffering, loss wages and medical expenses. If the injuries are severe, permanent and disabling, members of the patient's family - spouse, children, or parents - might have a claim. If the patient dies as a result of medical malpractice, the patient's family possibly could have a claim, depending upon many factors. When a claim is made, the recovery generally is based on pain and suffering, medical expenses, and loss of estate.
In evaluating whether a medical malpractice case might be worth pursuing, some important questions to consider include:
- Was there undue delay in diagnosis, treatment or surgery?
- Were there errors in diagnosis, treatment or surgery?
- Did the errors or delay ultimately affect the outcome of the illness, disease, condition or surgery? In other words, would the result have been different or better without the medical error? For example, did the failure to diagnose cause the patient to suffer irreversible health effects? Would earlier treatment have had a marked effect on the progress of the disease, the possibility of cure, the eventual outcome?
- Would a more skilled or competent health care professional have handled things differently and gotten a better result?
Who Can be Sued for Medical Malpractice
Anyone who has caused injury to the patient because of professional negligence may be named as a defendant in a medical malpractice lawsuit. Governmental entities and health care professionals employed by them may stand in a different position in the eyes of the law. For example, a medical negligence suit against a hospital owned by the state, city, county or county tax assessing district must be brought under the Florida Tort Claims Act. A patient's claim is much more restricted both in what must be proven in order to establish legal responsibility as well as in the amount of damages that may be recovered. When a patient is injured in a hospital owned by the federal government, such as a Veterans Administration hospital, the lawsuit must be brought under the Federal Tort Claims Act. In additional to be sued for monetary damages, a health professional who commits malpractice can be subject to potential disciplinary action.
How Long Do I Have to Bring a Medical Malpractice Lawsuit
Florida has a two-year statute of limitations in medical negligence cases. Generally, this means the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred with a reasonable possibility that medical malpractice caused it.
Florida also has a "statute of repose," another harsh provision in its civil laws. This means that - unless there is fraud, misrepresentation, or concealment - one can never sue a health care provider more than four years after the actual medical malpractice incident. So even if the patient or family does not know or can't be expected to know, the patient and family members cannot bring a claim four years after the incident occurs in most circumstances.
Florida has one significant exception - "Tony's law" - enacted in 1996. For medical negligence incidents that occurred after July 1, 1996, the four-year statute of repose cannot cut off a child's medical malpractice claim before the child's eighth birthday. Be careful, though. The two-year statute can still cut the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility medical malpractice caused it.
Since the rules about limitations are often changed by the legislature, and often modified by the appellate courts, you always should consult with a medical malpractice lawyer immediately if you think you or a family member could have possibly been injured by medical negligence.
How Do I Choose a Medical Malpractice Lawyer
Most important, determine whether the attorneys you are considering focus their practice on handling medical malpractice cases, and whether they have a record of successfully litigating these type cases.
Medical malpractice cases are some of the most challenging types of personal injury lawsuits to win. Medicine is not generally an exact science, so proving what should have been done differently is not always easy. Finding doctors who will testify against their colleagues can also be challenging, but there are health care professional who care more about the integrity of their profession and high standards of care than about camaraderie on the golf course and at medical conventions.
Our firm has been handling medical malpractice actions for sixty years, and definitely is willing to expend whatever it takes to properly conduct the discovery to determine what occurred and how it can be prevented in the future, and to effectively present the facts and law to a jury if the opposing side is unwilling to offer a fair settlement.
For a detailed discussion of our history, credentials, accomplishments and results, please visit our About Us section.
To contact us for a free confidential consult, you can call us at (850) 435-7000 (Pensacola) or (800) 277-1193 (toll free). You also can request a free private and confidential evaluation by clicking Medical Malpractice Evaluation Form, and your inquiry will be immediately reviewed by one of our attorneys who handles your specific type case.
Video--Why Does Medical Malpractice Happen
Transcript of Video: Why Medical Malpractice Happens