Should You Sue Your Doctor? Questions to Consider

April 19, 2017 | Attorney, Matthew Dolman
Should You Sue Your Doctor? Questions to Consider

Although the practice of medicine is based heavily on scientific study, mathematical applications, and raw biological data, the medical field is more of an art than some doctors may lead you to believe. Going for a second opinion is itself an acknowledgment that sometimes there is no one right answer when it comes to your health, and despite the data, doctors may disagree on your diagnosis and treatment.

Common Types of Medical Malpractice

In Florida, a “medical malpractice” action is defined as a legal case for the recovery of damages based on the death or personal injury of an individual as the result of the negligence of a healthcare provider. However, “healthcare” provider can include any of the following, and an action for medical malpractice is not limited to your treating physician. Florida considers the following entities to be health care providers for purposes of a medical malpractice action:

  • Hospitals
  • Surgical Centers
  • Clinical Labs
  • Blood banks
  • Dialysis faculties
  • Health maintenance organizations
  • Birth centers

Further, any medical practitioner who requires a license under Florida law is subject to a medical malpractice action.

The most common types of medical malpractice include (1) misdiagnosis, (2) pregnancy and childbirth negligence, (3) prescription medication issues, and (4) surgical and post-surgical errors.

Analyzing the Medical Standard of Care

Although claims for medical malpractice are based on the negligent acts or omissions of a physician or medical facility, the legal standards applicable in a medical malpractice action are more stringent than those that would apply for say, a car accident. In a medical malpractice action, the injured person is required to prove that the healthcare provider breached “the prevailing professional standard of care.” In order to prove this, Florida law requires you to show that the injury you suffered as a result of the treatment sought would not have been a reasonably foreseeable result of the treatment if another doctor, in accordance with the reasonable standard of care, had performed the treatment.

For example, if you break your leg and require surgery to set the bone, there are certain injuries that are reasonably associated with that surgery, such as scarring, pain, and an inability to walk for a time. You will suffer from those injuries even if the doctor is acting in accordance with the standard of care; accordingly, there is no medical malpractice action to be had because you are unable to walk for a time. On the other hand, if Doctor Adam performs the surgery and uses a tool that is unsterile, which results in infection and then amputation of the leg, he likely did not perform in accordance with the standard of care, as Doctors Brian, Carol, and Debbie would never have done so had they performed the surgery, and you would not have lost your leg.

As another example, however, if you are trapped under a vehicle and the only way for Doctor Adam to save your life is to amputate your leg with the only available tool, and unsterile knife, then you may not have an action in negligence if an infection results, as Doctors Adam, Brian, Carol, and Debbie may all agree that this was the best way to proceed under the circumstances. Accordingly, there would be no breach of the standard of care.

Is a Misdiagnosis Always Medical Malpractice?

Most doctors are well training, and when it comes to it, there are not many actions in malpractice based on failure to use sterile tools or amputation of the wrong leg. However, misdiagnosis is one of the most common reasons why doctors are sued for malpractice. If you go to a clinic complaining of severe head pain and the doctor states that you merely have bad allergies and gives you allergy medication instead of taking an MRI or CT scan when you were actually suffering from an aneurysm and further injury results, you may be able to sue the doctor and clinic for breaching their standard of care. This is because those who complain of severe head pain would normally be scanned to ensure there is no head trauma before a doctor assumes it is allergies. Failure to do so is a breach of the standard of care and, as such, medical malpractice.

However, there are times when a misdiagnosis cannot be the basis for a medical malpractice action. For example, if you enter a clinic and complain of head pain, the doctor scans you, asks you all the right questions regarding your day and family history, and still has no reason to believe you may be suffering from an aneurysm, this may not be a breach of the standard of care. If Doctors Adam, Brian, Carol, and Debbie all agree that there was nothing on the scan or in your family history that would indicate an aneurysm, and the clinic did everything in accordance with accepted standards for treating head pain, you may not have a case.

What About a “Missed” Diagnosis?

Unlike a "misdiagnosis," when a health care provider diagnosis one condition when it is really another, e.g., treats you for allergies when you really have a brain injury, a missed diagnosis occurs when a doctor doesn't diagnosis you at all and misses the symptoms of a disorder or tells you there is no real injury. For example, if you go to Doctor Adam because you have been suffering from extreme fatigue over the past few weeks, he may say that there is nothing medically wrong with you and you simply need to get more sleep. When you sleep more and the fatigue does not improve, you may see Doctor Debbie, who tells you that it is standard for doctors to do blood work in such cases. If the blood work then reveals that you have a virus that was made worse by Doctor Adam's failure to diagnose you using the accepted standards of medical care, then you may have an action for missed diagnosis.

Contact a Clearwater Medical Malpractice Attorney Today for a Free Consultation

Medical malpractice cases can be complex, and because they are based on the standards of care in the medical field, it takes a team of doctors, lawyers, and expert witnesses to prove your case. It is vital that you fight for your rights as a patient and the rights of your loved ones who may have suffered at the hands of a negligent physician or facility. Failure to do so can leave you paying for medical bills you should never have been responsible for and may result in the continued negligence of that healthcare provider to the detriment of others. If you or a loved one was injured or died as the result of medical malpractice, contact Dolman Law Group Accident Injury Lawyers, PA. Its attorneys have the experience to fight for your rights in the greater Tampa Bay Area. Call them today at 727-451-6900 for a free, no-risk medical malpractice consultation.

Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 3375 (727) 451-6900


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has represented over 11,000 injury victims and has served as lead counsel in over 1000 lawsuits. Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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