Doctors and other medical providers are required to diagnose and treat patients in accordance with an established standard of care. Failure to do so may result in liability for the medical professional and the facility that employs him or her.
If you were injured due to a medical error in Bradenton, Florida law has a process through which you can collect compensation for the injury-related expenses and impacts you have incurred on your life. An experienced Bradenton Medical Malpractice Lawyer at the Sibley Dolman Gipe Accident Injury Lawyers, PA and Sibley Dolman can help you to determine if you qualify. Call us today so we can get started on your case.
What Is Medical Malpractice?
Medical malpractice is defined as the failure of a health care provider to adhere to a developed standard of care that would have been provided by a reasonably prudent health care provider in the same circumstances. Medical malpractice is the third leading cause of death in the United States, behind only heart disease and cancer in its prevalence. More than $3 billion a year is paid out to the victims of medical malpractice, with one payout occurring every 43 minutes.
Some common causes of medical malpractice lawsuits include:
- Failure to diagnose or misdiagnosis: If a competent doctor in the same specialty would have readily determined your diagnosis, but your doctor missed it, you may have a medical malpractice claim. Commonly missed diagnoses include heart attacks and cancer. Misdiagnosis or failure to diagnose can create a worsening of a patient’s medical condition and can lead to death.
- Failure to treat, which occurs when a doctor properly diagnoses a condition but fails to provide treatment in accordance with the commonly accepted standard of care for that condition.
- Surgical errors, including wrong-site surgery or a surgical instrument or sponge left in the body cavity.
- Anesthesia errors that can cause catastrophic injuries, including brain damage or even death.
- Birth injuries, including inadequate treatment of pre-existing conditions during pregnancy or failure to provide proper care during the birth process, failure to diagnose a birth defect, unnecessary cesarean sections or surgical errors during the cesarean section, or lack of adequate follow-up care and testing after birth.
- Lack of proper consent: Health care providers are required to inform their patients about the benefits and risks of the procedure. Failing to disclose all pertinent details or to garner consent before performing the procedure can result in liability.
- Failure to take an accurate patient history or failing to consult a patient’s history before prescribing treatment.
- Medication errors, including dosage errors, prescribing the wrong kind of medication, or prescribing a medication that is inappropriate for the patient based on his or her medical history.
- Nursing home abuse: Skilled nursing facilities, also known as nursing homes, provide 24-hour nursing services and care to elderly and vulnerable individuals who can’t accomplish daily living tasks on their own or require 24-hour nursing care. These facilities are often certified to accept Medicare/ Medicaid patients and are subject to federal and state requirements. Not all care provided at these facilities is subject to medical malpractice laws; however, if the services are provided by a medical professional, including a physician, nurse, therapist, or nurse’s aid, medical malpractice is potentially an option.
- Alcohol and drug treatment facilities and the staff of such places. As with nursing homes, some of the care obtained in this type of facility is residence-based, and malpractice laws aren’t applicable. However, if the care is provided for medical purposes, such as the use of medication to treat addiction or the provision of mental health services, there could be a medical malpractice claim.
Potential Sources of Liability in Malpractice Cases
Medical malpractice laws do not just apply to physicians. Other health care providers can face liability in a medical malpractice claim as well. Potential sources of liability in this type of case include:
- Medical doctors of any specialty
- Nurses and doctor’s assistants
- Hospitals and other facilities that provide medical treatment
- Mental health professionals
- Anesthesiologists, radiologists, and lab technicians
- The manufacturers or distributors of medical devices and prescription medications
- The staff of a skilled nursing facility
Proving Medical Malpractice
Medical malpractice is proven by establishing four elements:
- The existence of a doctor-patient relationship between the defendant and the plaintiff. In other words, you went to this health care provider to obtain treatment, you were considered a patient, the doctor had access to your medical history, and a payment for the doctor’s services was arranged. It seems like this would be self-explanatory, but there is sometimes confusion about the doctor-patient relationship. For example, the family members of the pop star Prince filed a medical negligence claim against a doctor who was asked by Prince’s associates about addiction in the weeks before his death. The case was dismissed, as the doctor had no established doctor-patient relationship with the star and had never communicated with him personally.
- The health care provider deviated from the standard of care when providing treatment to the patient. This element is often proven through testimony by medical experts who specialize in the field of medicine relevant to the case as to how they would have responded in the same situation.
- This deviation from the standard of care resulted in an injury to the patient. Simply deviating the standard of care, with no negative impacts on the patient, is not enough to satisfy this element. Cases cannot be filed for a situation that might have happened due to the medical provider’s carelessness.
- The injury resulted in significant damages to the patient.
Not all medical errors or deviations from the standard of care resulting in injury will give rise to a medical malpractice claim. The claimant must show that the doctor knew or should have known that the standard of care was not being met with the treatment and that significant damages occurred as a result. For example:
- If a doctor performed a surgery and the patient had a bad outcome that was listed in the potential risks of the surgery and the patient was informed of this risk before the procedure was performed, the doctor would not be considered negligent.
- If, under the same scenario, the patient was not informed that this outcome could be the result of the surgery and might not have agreed to the surgery had this potential complication been made known, the doctor may face liability for the injury incurred by the patient.
Damages That Patients Can Recover in a Medical Malpractice Case
The damages that an injured patient can recover in a medical malpractice case in Bradenton include:
- Past, current, and estimated future medical expenses to treat the injury that was caused by medical negligence.
- Lost wages due to work that was missed as a result of the injury.
- Loss of future earning capacity or business opportunities, if the injury results in a permanent disability and the injured person can no longer work or to earn the same money as he or she did before the injury.
- The cost of household services that the claimant previously performed but now must hire someone else to perform due to the injuries.
- Emotional or physical pain and suffering.
- Emotional distress or mental anguish.
- Loss of enjoyment of life.
- Punitive damages, in some cases, designed to punish the defendant for particularly reckless or reprehensible behavior.
Bradenton Medical Malpractice FAQ
Recently, the family of a man who sought help for mental health issues filed a medical malpractice lawsuit. The man was suffering from depression, insomnia, poor appetite, and other issues after a breakup with a girlfriend. He voluntarily went to a local mental health facility, who successfully petitioned the court to have him involuntarily held a day later.
Doctors ordered the man placed on suicide watch, with staff checking on him every 15 minutes. Three days later, he was found dead in his bathroom at the facility. He had hanged himself with a sheet attached to the wires of the smoke alarm.
The lawsuit alleges that the staff at the facility failed to check on the man for 10 hours, in spite of the order to check him every 15 minutes. The lawsuit accuses the facility staff of failing to follow its own suicide watch policy and failing to remove anything dangerous from his room.
When a health care worker fails to follow protocol, it constitutes a form of medical malpractice. When medical malpractice results in the injury or death of a person, the provider is liable for damages. Below we discuss some of the most commonly asked questions that we receive regarding medical malpractice.
How is medical malpractice proven?
A medical malpractice claim is proven by establishing all of the following elements:
- There was a violation in the standard of care that a reasonably prudent professional would have provided in similar circumstances.
- This violation resulted in an injury to a patient.
- The injury inflicted on the patient by the violation of the standard of care resulted in significant damages.
Medical malpractice claims often depend on medical experts who will testify in court as to the standard of care that is expected for treatment that you were undergoing at the time that the negligence occurred.
What types of lawsuits may be filed in medical malpractice cases?
Negligence on the part of a health care provider can result in injury or death. The types of civil actions that are filed in medical malpractice cases include:
- Personal injury lawsuit: Individuals injured by medical malpractice may file a personal injury lawsuit within four years of the date of the injury.
- Wrongful death lawsuit: A medical malpractice wrongful death lawsuit is filed within two years of the date of death by a named or appointed representative of a deceased person’s estate to recover damages on behalf of surviving family members. The survivors who are eligible to obtain compensation from a medical malpractice wrongful death action include the deceased’s spouse, children, parents, and other family members who are wholly or partially dependent on the deceased for support.
How common is medical malpractice?
Medical negligence is the third leading cause of death in the U.S., causing an estimated 195,000 deaths each year. Annually, there are between 15,000 and 19,000 medical malpractice lawsuits filed each year, and—by the age of 54—64 percent of all physicians have faced at least one medical malpractice lawsuit.
The 10 most common causes of medical malpractice lawsuits as a result of medical negligence include:
- Failure to diagnose, which is the most common subject of medical malpractice lawsuits, in which doctors may miss significant conditions, such as heart attacks, stroke, breast cancer, lung cancer, appendicitis, diabetes, high blood pressure, and more.
- Injuries caused during treatment: 31 percent of malpractice suits filed against physicians pertain to treatment that did not improve the patient’s health, but instead made it worse.
- Failure to treat is a source of malpractice lawsuits against 12 percent of physicians who participated in a Medscape survey. Included in this category is a failure to treat hospital-acquired infections.
- Improper documentation: Documentation of diagnosis and previous treatments is an important part of a patient’s history. Failing to properly document all information relevant to the treatment the patient receives can result in injury or death.
- Medication errors, which are involved in 4 percent of medical malpractice lawsuits. Medication errors most likely involve an incorrect dosage. However, these cases may also involve prescribing the wrong medication for the patient’s condition or prescribing medication that the patient’s medical history should have prohibited.
- Failure to follow safety procedures, including evaluating a patient’s medical history before prescribing a medication or verbally communicating the risks associated with a specific course of treatment.
- Failure to obtain informed consent or improperly obtaining consent with a patient for a medical treatment.
- Failure to provide follow-up care.
- Leaving a surgical item, such as a sponge or towel, inside a patient’s body, which occurs once out of every 5,000 to 7,000 surgeries.
- Unnecessary surgery: 48 million surgeries are performed each year, and many of them are unnecessary.
What is informed consent, and why does failing to provide it constitute medical malpractice?
Informed consent is a requirement that doctors explain to you both the benefits and the risks associated with a chosen course of treatment or prescribed medication. Patients have the right to determine whether they wish to proceed with a treatment and the ability to decline treatments that they do not want to undergo. However, they can only make those decisions properly if the physician has explained the treatment thoroughly. An example of a doctor failing to provide informed consent would be if you discovered that the treatment you have been undergoing is experimental, but the doctor failed to tell you that.
Doctors are required to provide informed consent about the significant risks posed by a specific course of treatment. However, doctors are not required to inform patients of every conceivable risk that may exist. Additionally, if the doctor did not know or have reason to know of a risk or reason, he or she will likely not be liable for your injury. In many cases involving medical devices and drugs, risks are discovered only after the drug or device has been used many times.
If the drug I was prescribed is discovered to be unsafe, can I sue the doctor who prescribed it?
The doctor is only negligent if he or she knew or had reason to know that the drug was unsafe. If a doctor prescribes a drug and later the Food and Drug Administration determines the drug to be dangerous or requires the manufacturer to change the labeling to reflect a newly discovered danger, the doctor will likely not be held liable for your damages. However, in cases like this, you may have a product liability claim against the manufacturer or distributor of the drug, as those companies are responsible for ensuring that their products are safe when used as directed.
If I signed a consent form for a procedure, does this mean I don’t have a valid medical malpractice claim if I have a bad outcome?
Not necessarily. If your bad outcome was a result of a known risk to the procedure that your doctor explained to you before you provided your consent, then you likely do not have a claim. However, if the bad outcome was a result of negligence during the procedure, the doctor may be liable for your injuries.
I am unhappy with the outcome of my surgery. Do I have cause to file a medical malpractice claim?
Surgeries don’t come with guarantees of positive outcomes. A properly informed patient understands that every type of procedure involves risks, and your doctor should have explained those risks to you before the surgery ever took place. Unhappiness with the outcome of the surgery, in and of itself, is not a reason to file a medical malpractice claim. Rather, to file a claim, you must show that the surgeon’s actions during the procedure deviated from the standard of care provided by most surgeons in this type of surgery.
What damages can be obtained in medical malpractice cases?
In Florida, if a person sustains an injury as a result of medical malpractice, he or she can sue for damages that include:
- Medical expenses related to the injury
- Lost wages due to being too injured to work
- Loss of future earning capacity if the malpractice results in a disability that prevents the individual from continuing with the same employment he or she had before the injury
- Non-economic damages, such as pain and suffering, loss of enjoyment of life, disfigurement, and emotional distress
Previously the amount of non-economic damages that a person could recover from a medical malpractice case were capped at $500,000 if the negligence was committed by a practitioner, with a $1 million cap placed on this type of damages in cases where the negligence resulted in a patient’s death or vegetative state. However, in 2017, the Florida Supreme Court ruled that these caps were unconstitutional, as they arbitrarily reduced the damages available to the most catastrophically injured patients.
In 2019, the Florida legislature considered a bill that would reinstate those caps. According to the bill’s sponsor, the bill was intended to send a message to the Supreme Court about the separation of powers.
A nurse gave me the wrong medication while I was in the hospital. Who is liable?
The potential sources of liability in this type of medical malpractice claim include:
- The nurse who gave you the wrong medication
- The hospital that employs the nurse if the medication error occurred during the normal scope of his or her employment
- An independent doctor if he or she failed to directly supervise the provision of the medication
What is the average settlement or award in a medical malpractice case?
There is no average settlement or award amount, as each case depends on its own set of facts. A case’s value is determined by the amount of expenses an individual has incurred due to the injury, as well as the impacts that the injury has had and will have on his or her life. Additionally, punitive damages are awarded in some cases that involve particularly egregious behavior. The rule of thumb is that the more significant your injuries were, and the more significant the negligence was, the higher the case’s value.
How do I know if my case constitutes medical malpractice?
It is often hard for individuals to know if the injuries that they have received are simply a bad outcome to a procedure or condition, or if the injuries are the result of medical negligence. The easiest way to determine this is to speak to an attorney with experience in medical malpractice cases.
Do I need an attorney to pursue a medical malpractice lawsuit?
Yes, you absolutely need an attorney if you are planning to pursue a medical malpractice lawsuit. Medical malpractice cases are complex and involve not only an extensive understanding of the standard of care that medical professionals are required by law to provide, but these cases also require a thorough knowledge about the legal process of obtaining compensation through a medical malpractice lawsuit in Florida.
The insurance companies who provide malpractice coverage to physicians employ high-powered attorneys to protect the physicians’ interests, and individuals planning to go up against one of these attorneys are at a distinct disadvantage if they attempt to recover damages on their own. Injured individuals seeking compensation are more likely to obtain a settlement or award in their case with the guidance and representation of an attorney with experience in medical malpractice cases.
Do all medical malpractice claims go to court?
No. In fact, just as with other civil torts, the majority of medical malpractice claims are settled outside of court. The insurance companies and attorneys representing medical professionals often realize that a particular case, if it goes to court, will result in a large payout. Thus, to reduce the amount of money being paid out, insurance companies in these situations will attempt to negotiate with the victim’s attorney and offer a settlement in the case.
If you are offered a settlement for your medical malpractice claim, discuss this settlement with your attorney. Settlements are a one-shot deal: What you agree to accept is what you will receive, and you cannot go back to the defendant and ask for more money if it is not enough to satisfy your expenses.
Your attorney will establish a value to your case based on the full picture of the expenses you have already incurred, those that medical experts anticipate you will incur in the future, and the impacts that your injury has had on your life. Any settlement that does not take into consideration the entirety of your injury and resultant expenses is likely too low.
Is medical malpractice preventable?
Not all errors are preventable, even in the medical field. However, there are some things that people can do to reduce their chances of becoming victims of medical malpractice, including:
- Do your own research to understand the medical condition with which you have been diagnosed. Knowing about your condition allows you to ask more in-depth questions and have a greater understanding of what the answers actually mean.
- Document the symptoms you have been experiencing, as you experience them. Include as much detail as possible. This accounting will provide your doctor with a greater amount of information and could help him or her in properly diagnosing your illness or injury.
- Trust your instinct. If you feel like something is wrong with the doctor’s appointment you are attending or the course of treatment that is being recommended, ask questions. If you feel those questions are not being answered to your satisfaction, seek a second opinion.
- Take a trusted friend or family member to your doctor’s appointments with you. The old adage “two heads are better than one” applies here. Your companion may think of questions to ask that you would not have thought about.
- If you feel that you are not receiving proper medical care, look for another doctor.
At Sibley Dolman Gipe Accident Injury Lawyers, PA and Sibley Dolman, our attorneys are ready to answer your questions about your medical malpractice case.
Let Us Help With Your Bradenton Medical Malpractice Claim
We entrust health care providers with both our lives and our health. While most doctors take this responsibility very seriously, a doctor’s failure to provide proper care can result in serious injuries and even death. If you have been injured as a result of medical negligence in Bradenton, our experienced personal injury attorneys are available to help you understand your legal options. With offices across both Florida coasts, you can easily reach Sibley Dolman Gipe Accident Injury Lawyers, PA and Sibley Dolman at 833-552-7274 (833-55-CRASH) or by contacting us online.
6703 14th Street West Suite 207
Bradenton, FL 34207
Phone: (941) 961-8841
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