When you or a family member is a victim of medical malpractice, you may not know what to do. Successful malpractice claims require more than filing a report and contacting a medical malpractice attorney. In fact, there are several steps a victim must take before filing a personal injury lawsuit against a medical professional.
Types of Medical Malpractice
People commonly believe doctors are the only healthcare providers that may be liable for medical malpractice. However, medical malpractice laws offer much wider protections. Any person who has an impact on your overall health may be found negligent for your care. For example, anesthesiologists, x-ray technicians, lab workers, pharmacists, mental health professionals, dentists and hygienists, and nurses may all be liable for malpractice.
Medical malpractice may include a variety of behaviors performed by healthcare providers while providing medical treatment. For instance, parties may be liable for failing to prescribe the proper medication or improperly analyzing test results. They may also be liable for surgical errors, birth injuries, diagnostic errors, and nursing home abuse. These are commonly reported instances of malpractice, however, many others may indicate liability.
Bad Outcomes Are Not Always Malpractice
It is important to acknowledge that not all adverse healthcare experiences allow for a claim of medical malpractice. To be successful, a medical malpractice attorney will have to prove many elements of the claim. Medical malpractice claims must prove:
- A violation of the standard of care. There are specific standards of care medical professionals are supposed to adhere to when caring for patients. If that standard of care is not met, the medical professional may have been negligent in performing their duty.
- An injured victim. You will only be entitled to file a medical malpractice lawsuit, if you can show a healthcare provider’s negligence caused your injuries. You may experience physical injuries related to your condition. On the other hand, you may experience a worsening of a condition, that would’ve been improved had there been no malpractice.
- Damages suffered by the victim. In malpractice cases, the victim must show they suffered a loss or damages. Damages may include disability, pain and suffering, unnecessary medical bills, or loss of income. A personal injury lawyer can help you determine the extent of damages you incurred. Without some form of loss, a medical malpractice case cannot go forward.
Once you are confident you can prove these elements of a medical malpractice case, you can proceed.
Understanding Standards of Care
The standard of care is the level of care a person should expect from another professional in the same field as their treatment provider. A patient has a right to the same level of care from a medical professional that others in the field would provide. In other words, a patient should expect the same level of care from their primary care physician and an emergency room doctor.
For example, a patient may be diagnosed with a hernia after a blood test, when an EKG would have shown a heart attack. It is likely a medical professional’s failure to order an EKG was negligent. Negligent behavior like this may provide a basis for a medical malpractice lawsuit.
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Understanding Injury in Medical Malpractice Cases
To pursue a personal injury claim, the victim must show they suffered an injury that would have been prevented had the healthcare provider not been negligent. Injuries can vary widely depending on the type of malpractice which occurred. For example, a surgeon may fail to remove sponges or an instrument from a surgical wound before stitching a patient’s incision.
If the foreign object causes an infection, the surgeon could be liable for any damages incurred. The patient may have to seek additional treatment for the infection, as well as a surgical procedure to remove the foreign object.
Other cases of medical malpractice may not have nearly as devastating consequences. A physician may misread a test result and treat a patient for bronchitis when they actually had pneumonia. The consequences may be problematic, but not devastating. In this case, the patient may be receiving an antibiotic which is not suitable for pneumonia, therefore, delaying proper treatment. Consequently, the patient may miss an extra week or two from work, but they will most likely make a full recovery. Although still negligent behavior, the damages caused by the behavior are less severe.
Damages in Medical Malpractice Cases
As indicated in the examples above, there are different levels of injury and negligence. Consequences are more severe when a patient has to undergo a second surgical procedure. Patients are likely to have scars they did not expect, miss additional time from work, and incur additional medical bills. All of these costs may be considered damages caused by the surgeon’s negligence.
In the second case, the misdiagnosis of pneumonia, the patient obviously suffered less extreme damages. The patient likely incurred additional costs for prescription medication, hospitalization, and missed time from work. While the costs are lower than the above referenced malpractice situation, they are still considered damages that a patient may recover.
Reporting Steps for Potential Malpractice
In addition to speaking with an attorney regarding a medical malpractice case, victims should do some additional reporting. Before speaking with an attorney, it is a good idea to speak with the medical professional that you believe acted negligently.
When speaking with your healthcare provider, you should attempt to determine what went wrong. Whether your case involved a surgical error, birth error, or medication error this should always be your first step.
The person you believe was responsible for your pain, injury, or suffering may fail to provide you with any answers. After speaking with them directly, you may turn to their employer for assistance. If the healthcare provider is a solo practitioner, you may consider filing a complaint with the appropriate state medical licensing board. A Health Care Provider Complaint Form may be filed with the Florida Health Medical Quality Assurance Board. Your attorney will help you file this form and ensure the appropriate documents are included. This form should be filled out even if your attorney intends to move forward with a medical malpractice lawsuit.
Steps Needed Before Filing a Lawsuit
You must be aware of the statute of limitations related to filing a medical malpractice lawsuit. You may not want to delay filing for the fear of being barred from filing at all. The statute of limitations, Fla. Stat. Ann. § 95.11, states that victims have two years to file a lawsuit. The two-year period begins when the injured party discovers they suffered their injuries due to medical malpractice. Of course, there are exceptions.
The period may be extended if the victim is a minor who was injured before their eighth birthday. You may also be eligible for an extension if the healthcare provider took steps to fraudulently to mask the malpractice. Additionally, there are protections for individuals who file a suit within four years of the date when the malpractice occurred.
Once a medical professional has been issued a notice of your intent to sue, they have 90 days to file a response. During this time, victims may request a 90-day extension to locate and identify an expert. You will need an expert who understands the type of medical malpractice case you intend to file. Identifying an expert is the only grounds for providing an extension. The extension must be requested within 90 days of the issuance of your intent to sue.
- Step one: Notice of claim. The victim, with the assistance of their attorney, is required to file their notice of intent to sue. Notice must be served to all providers involved in the case. The notice must include any health care providers who subsequently treated the victim for any harm associated with the alleged malpractice. Additionally, any healthcare providers the victim has seen within the two years before the incident resulting in the harm must be disclosed. Notice must be sent via certified mail to all involved parties. The notice must also include all relevant medical records and an affidavit of merit signed by an expert medical witness.
- Step two: Waiting for response from providers. Once you have issued the proper notices to the healthcare professional involved, you must allow 90 days for their response. During this time, the professionals will be conducting their own investigation. Once the healthcare provider has had the opportunity to review your claim, they must respond. The provider will likely outright reject your claim, offer you a settlement, or accept responsibility. If the provider accepts responsibility, they will issue an offer to arbitrate.
- Step three: Speak with your attorney. Victims who have issued an intent to sue in a medical malpractice claim should contact their attorney. Your attorney will assist you in determining the best way to proceed. You will be given a timeframe in which you must decide whether to accept an offer to settle. Should you deny the offer you must inform the parties of your decision to move forward with medical malpractice arbitration.
If you decide to move forward with arbitration, your attorney will file a request with the appropriate professional administrative board. Typically, a panel of three arbitrators will hear the case. The board will determine the level of responsibility of the medical care professional. Then, they will ask your attorney about the damages which you have incurred as a result of the malpractice.
After your attorney presents evidence of your damages, the board will issue a monetary judgment against the medical provider. Arbitration is a process that is binding upon both parties It is important to contact an attorney before this process starts.
The selection of arbitrators is not complicated. Both parties select one arbitrator and the third arbitrator is an administrative law judge. The administrative law judge is appointed by the Division of Administrative Hearings (DOAH) and will serve as the “chief “arbitrator.
If you accuse multiple defendants of wrongdoing, all parties must agree to a single arbitrator. In the event of any disagreement upon who that person should be, DOAH resolves the dispute.
Why Arbitration Instead of Court?
Victims of medical malpractice often believe they are better off if the case is heard in court. However, it is important to remember that medical malpractice cases are complicated, costly, and time-consuming. By using the arbitration process, victims can accomplish their goals. Typically, you may wish to hold the medical professional responsible for their error, receive compensation for damages, and move forward. To engage in arbitration, the defendant must admit fault. The purpose of an arbitration is only to establish damages.
Keep in mind, after both parties agree to arbitration, the results are binding upon both parties. That means the responsible party generally cannot appeal the decision that has been issued. Additionally, that means once the arbitration is complete, the responsible party has a limited amount of time to pay the financial damages. They are usually allotted 20 days within which they must provide payment.
The responsible party is also expected to pay for the injured party’s arbitrator, attorney fees, and interest from accrued damages. Generally, the only fees the plaintiff would be responsible for would be the administrative judge’s fees.
What if I Do Not Agree to Arbitration?
If you and your attorney decide arbitration is not the best resolution, you must advise the defendant that you are rejecting the offer. Before making this decision, however, you should have an in-depth discussion with your personal injury attorney. You want to ensure that foregoing arbitration is the right decision for you and your family.
Medical malpractice cases are complicated, and every case is different. Due to the complexity of the laws, it is imperative to speak with an experienced medical malpractice attorney. An attorney can help you understand what limitations you may be subject to. They will assist you in the process of reporting a doctor for malpractice. Additionally, they will help you determine whether arbitration is the right answer for your case.