The Law of Medical Malpractice
At Levin Papantonio, our highly experienced and successful 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.
Virginia Buchanan, a partner with Levin Papantonio, heads our medical malpractice department. For more than 25 years, Ms. Buchanan has represented individuals and families impacted by the careless acts of healthcare providers; recovering tens of millions of dollars in jury verdicts and settlements.
Ms. Buchanan has written many articles regarding medical malpractice, and co-authored a chapter in a leading medical textbook, where her work was quoted in a review in the American Medical Association Journal. She has lectured numerous times to physicians, medical residents, students and nurses. She has been a member of the subcommittee of the American Bar Association on legislation affecting litigation and was appointed to a special committee of the American Bar Association regarding health care law. Most recently, she co-chaired a medical malpractice seminar for the Florida Justice Association as part of its prestigious Masters of Justice series.
What is a Medical Malpractice Lawsuit
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
- Non-Small Cell Carcinoma/Ung Cancer
- Rapid Assays
Who Can Bring a Medical Malpractice Lawsuit
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
There is not an easy answer to this question because it depends on several factors, such as where the medical negligence occurred. For example, if the medical malpractice occurred in Pensacola, Florida, a two-year statute of limitations applies. 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.
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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.
How Do I Pay for a Medical Malpractice Lawyer
Our medical malpractice lawyers provide an absolutely free confidential consultation, and if we are fortunate enough for you to hire us, we never will charge you any fees or costs unless you first recover. This type of fee is known as a contingency fee.
The fee we charge ranges from 20% to 40% depending upon the amount we recover for you. This fee should be virtually identical to what other lawyers are charging, as the amount is controlled by The Florida Bar. This is true whether your lawyer has never handled a medical malpractice case or whether it has been the focus of their practice for more than 50 years, as with our law firm. For a detailed discussion on fees and costs, click Fees & Costs.
When hiring a law firm to handle your medical malpractice case, it's important to take your time and research them. Study their web sites for credentials, expertise, commitment, resources, success rate and fees. Meet with several firms. Ask a lot of questions, and determine who you feel most comfortable trusting.
What Must I Prove in My Medical Malpractice Lawsuit
In a professional negligence case brought against a health care professional, you must introduce evidence which the court finds sufficient to establish all three of the following elements:
- Proximate (legal) cause
Negligence is the failure to use care on the part of a physician, nurse, surgeon, hospital, emergency room doctor or other medical provider that is of the skill and treatment recognized as acceptable and appropriate by similar and reasonably careful health care professionals.
Proximate cause is a concept that essentially means a legal cause. One must prove that the health care provider's negligence caused the client's injuries and that the injury suffered by the client (or some similar injury) was reasonably foreseeable beforehand as a result of the health care provider's failure to render appropriate care.
Damage is the harm done to the client that directly results from the health care provider's negligence. It is the physical, emotional and financial harm that the client experienced as a result of the malpractice.
How Do I Prove My Medical Malpractice Claim
Florida, in nearly all instances, requires proof of medical negligence by way of expert testimony. A physician who is licensed, practicing now or at the time in question, and who is familiar with the standards of good and accepted medical care in question must testify that the professional standards were not met. The expert must establish what the standards of good practice were and how the defendant, by his or her actions, violated those principles.
A bad result does not automatically mean negligence. Juries are not permitted to infer negligence from bad results. If a client does not introduce the required testimony from a qualified expert establishing the negligence element, the client is said to have failed to make his/her case. The judge may withdraw the case from the jury and direct a verdict against the client. A jury may never be allowed to pass on the defendant's conduct in this circumstance.
In most cases, proof of legal or proximate cause requires expert testimony. A qualified physician must testify that the patient's injuries probably would not have occurred if proper medical practices had been followed and that the defendant health care provider should have reasonably foreseen this or some similar result. Again, at the conclusion of the patient's evidence the defense may move for a directed verdict if there is not adequate expert testimony of legal cause. In some limited instances juries may infer causation but most questions of proximate cause require the testimony of an expert.
Some damage elements are proved by the testimony of the patient, family and friends. For example, the presence of physical pain or mental anguish normally comes from lay witnesses. The patient can prove lost earnings from testimony, income tax returns or wage records. Past medical expenses are established by the bills and testimony of a medical expert that the charges were reasonable and necessary to treat the condition. Some elements of damage, such as future disability and medical expense, may require the testimony of an expert witness.
Sometimes defendants appeal after the jury has found that the defendant health care provider was negligent. The appellate court then reviews the record a second time to determine if the patient's evidence of professional negligence was legally adequate.
How Long Will My Medical Malpractice Case Take
Normally (in the Pensacola, Florida area) it takes 2 - 4 years to bring a medical malpractice case to conclusion. However, the time required varies (especially in our cases in other states) because of factors such as the number of parties involved, the number of depositions and investigation needed, schedules and commitments of experts, the judge, and so forth. Most of the cases that we accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case's conclusion by another 2 years. Although more than 80 percent of our cases settle, we find that defendants - perhaps emboldened by "tort reform" - are growing more willing to take cases all the way to trial.
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 Free & Confidential Consult, 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