Doctor Mistakes and Medical Malpractice
As humans, we make mistakes. Nobody is perfect. But when you’re a doctor, a mistake can cost patients a limb or their lives. As such, the law allows patients to hold doctors accountable for these mistakes. However, it’s not as simple as making a claim, the doctor admitting his or her mistake, and you going on your merry way. When a doctor makes a mistake, it may constitute medical malpractice. If you think you may have a medical malpractice claim, contact a licensed Florida malpractice attorney without delay.
What Is Medical Malpractice?
The law is designed to prevent frivolous lawsuits against healthcare professionals. Consequently, there is a very high standard that petitioners must meet to file a medical malpractice claim. Additionally, if you are alleging negligence, your lawyer must investigate to determine that there is a “good faith belief” that the doctor was negligent. Florida defines medical malpractice as a breach of the normal standard of care as is typical for similar healthcare professionals. The normal standard of care will be determined as “that level of care, skill, and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”
Who can be Sued for Medical Malpractice
The law applies to:
- Hospitals or ambulatory surgery centers
- Other healthcare providers
Common Forms of Medical Malpractice
Beyond the legal definition, it’s easier to understand what is and is not medical malpractice by looking at real-life examples. The following are examples of medical malpractice:
- Delayed diagnosis
- Missed diagnosis
- The wrong diagnosis
- Surgical errors
- Items left in a bodily cavity
- Improper medication or inaccurate dosage
- Misread or disregarded lab results
What is Not Medical Malpractice?
Whereas medical malpractice is not:
- Issues with the doctor’s personality (i.e. rudeness, the doctor is in a hurry, etc.)
- Ineffective treatment
- Unexpected side effects
- The patient dies sooner than expected
There is a big difference between a medical error, and issues that can spring up during treatment, and medical malpractice. In order for it to be considered medical malpractice, a doctor or other medical professional needs to violate the standard of care in a way that causes harm to the patient. This means that a doctor needs to do something that their peers in a similar situation wouldn’t do and have their action or inaction injure their patient. So if an injury occurs and there is nothing within a doctor’s power to do then they cannot be considered negligent. A doctor can also adhere to the standard of care and a patient can still end up injured.
What Should I Do if I Think the Doctor Made a Mistake?
The first thing to understand is that you have rights. The law allows patients to file a malpractice claim up to two years after the date of the injury. While two years may seem like a lot of time, this is two years shorter than you have to file most other personal injury claims in Florida. This is why it is extremely important to talk to an experienced malpractice attorney right away. There are several steps involved in making a medical malpractice claim, and it can take a long time to build a solid case. The burden of proof is on you to prove that the doctor’s actions led to your injury. If you believe you have a malpractice claim, contact an attorney right away. Do not contact the hospital or doctor you believe is at fault. In some cases, the healthcare provider may be aware of his or her mistake and may try to offer you a settlement to prevent legislation. In most cases, this will be far less than what your injuries are worth. Do not sign anything or accept any offers without talking to a licensed attorney first.
How Do I Prove Medical Malpractice?
While the burden of proof is on the plaintiff, the good news is that your lawyer will do most of the work. To prove medical malpractice you must be able to show the following:
- There was a doctor-patient relationship: For a doctor to be liable in a medical malpractice case, a doctor-patient relationship must exist. This must be a mutually agreed-upon relationship. This relationship usually exists when you go to an appointment or hire a doctor to do surgery. Alternatively, it does not apply to a doctor who gives advice on an online discussion board or a friend or family member who answers your questions at a holiday get-together.
- The doctor failed to meet the standard of care: This will be one of the hardest criteria to meet. To make a medical malpractice claim, you must be able to prove beyond a reasonable doubt that the doctor’s actions did not meet a reasonable standard of care. In other words, you must be able to show that another doctor in the same situation would not have acted in the same way. Your attorney will likely call in an expert witness to determine whether the doctor’s actions were reasonable.
- The doctor was negligent: You must be able to prove that the doctor’s actions or inaction led to your injury. In other words, if you are claiming that your doctor missed a cancer diagnosis, you must prove that they did not make the proper diagnosis despite having all the information to do so. If you are making a claim that the doctor missed a brain cancer diagnosis, but you failed to tell the doctor that you were suffering from headaches and hallucinations, the doctor would most likely not be found negligent.
- The injuries were not foreseeable: Your injuries cannot be the result of a foreseeable consequence of a procedure or action. What does this mean? Well, if your doctor prescribes a medication and you have an adverse reaction, this reaction was likely a foreseeable side effect of the drug. However, if you schedule a surgery to have your appendix removed and the doctor removes your spleen instead, that was not a foreseeable consequence of the surgery.
- The doctor’s actions led to quantifiable damages: It’s not enough to prove that the doctor made a mistake. You must prove that the doctor’s mistake caused you actual harm. For example, if the doctor failed to wash his or her hands, and nothing happened, you don’t have a claim. If the doctor didn’t wash his or her hands, and you suffered from an infection as a result, you would have verifiable damages.
To prove medical malpractice, your lawyer will use several tools to show your doctor’s negligence. This may include:
- Your medical record: Your medical record is an important part of your medical malpractice case. These records can show your condition before and after your interaction with the doctor. They will also show your symptoms, medication history, and health history. If, for example, your records show an allergy to a commonly used drug in surgery, and your doctor had access to these records and did not check them, he or she will likely be held liable.
- Witnesses: Were there witnesses to the doctor’s negligence? Can another healthcare provider attest to the doctor’s actions? What about your injuries? Can friends and family attest to a change in your behavior or activities?
- Expert witnesses: You cannot prove medical malpractice if you cannot prove that the doctor did not meet a reasonable standard of care. The traditional way to do this is to bring in an expert witness to illustrate why the doctor’s actions were unreasonable and negligent. According to Florida law, an expert witness must be an actively licensed professional in a similar role as the doctor in question.
- Physical evidence: Did your injury leave physical scars? Have you required follow-up care or additional treatment as a result of your injury? Physical evidence may include photographs, receipts, surgical notes, or other relevant evidence.
What Happens to the Doctor?
In most medical malpractice cases, the doctor will be able to continue to practice medicine after a malpractice suit. The law understands that professionals will make mistakes from time to time and makes an allowance for this. In fact, a recent study found that over 50 percent of doctors had been sued at least once in their career. It will be up to the medical board to determine whether the doctor will keep his or her license. Generally, unless the doctor’s actions are so negligent that he or she poses a risk to other patients, or the doctor has faced multiple charges, there will not be any adverse effects. Whether the doctor continues to work at his or her current facility will be up to that provider’s employer. In some cases, the doctor may face criminal charges. However, this is exceedingly rare. This usually only happens if the doctor inflicted intentional harm, or if he or she was under the influence or grossly negligent.
How Much Compensation Can I Recover?
In 2017, the Florida Supreme Court ruled that the state’s cap on non-economic damages for medical malpractice cases is unconstitutional. This means that there is no cap on the amount of damages that you can recover. Your damages will be based on the extent of your injury and the actual costs associated with it. In personal injury cases, costs are separated into economic costs and non-economic costs. Economic costs are those with a direct monetary value, as in medical bills and lost wages. Non-economic costs are those that are more subjective and variable, such as pain and suffering. Common costs in a medical malpractice suit include:
- Medical costs: These costs refer to the actual treatment costs for your injuries. This may include follow-up care, surgeries, medical imaging, medication, physical therapy, counseling, or the use of expensive medical devices.
- Lost wages: Did your injury cause you to miss time at work? The law allows you to recover financial damages for wages lost from the date of injury to the time you can return to work. This includes any time missed for additional treatment or recovery. Lost wages only begin from the date of your actual injury. If you were in the hospital before the doctor’s error, lost wages would not cover this time. If you are unable to return to work at all, you may have a case for future wages.
- Loss of earning capacity: Loss of earning capacity refers to the income you earn. If you can return to work, but in a different function than before, you may have a claim for the difference in earning capacity.
- Pain and suffering: Pain and suffering damages cover your actual physical and emotional pain after an injury. Commonly covered items include chronic pain, depression, anxiety, and embarrassment.
- Loss of enjoyment: Does your injury interfere with your ability to do things you once loved? When an injury interferes with your quality of life, you deserve appropriate compensation. To prove loss of enjoyment, you must be able to show that you are unable to engage in activities that you did before the injury, as a result of the injury. For example, you can’t claim loss of enjoyment if your pain prevents you from being a competitive weightlifter if this is not an activity that you enjoyed before. On the other hand, if scars from your injury cause anxiety every time you go out, you have a justifiable claim that you are not able to go out and do things that you enjoyed before.
- Loss of consortium: Loss of consortium refers to the loss of a physical or emotional relationship as the result of an injury. This is usually a claim made by the family of the injured or deceased party. While loss of consortium is often a claim made in wrongful death cases, it can apply to cases of serious and permanent injury. For example, a brain injury may result in a person’s ability to talk or connect on an emotional level. A spinal cord injury may affect a person’s ability to provide for his or her family or have a sexual relationship.
- Wrongful death: When a doctor’s negligence results in the death of a loved one, it can be difficult to comprehend. The sudden loss can leave you shaken and emotionally distraught. Wrongful death claims cover the pain and suffering of the victim’s family as well as any outstanding medical costs, funeral costs, and lost wages.
Need Help? A Licensed Malpractice Attorney Can Answer Your Questions
We hold doctors to a high standard of care, as we should. When a doctor falls short of providing a reasonable standard of care, the injured individual deserves fair and just compensation. An experienced malpractice attorney can help you build a case and hold the responsible parties accountable. If you think you may have a medical malpractice claim, don’t wait. If you have questions about your recent injury, contact an experienced medical malpractice attorney. Sibley Dolman Gipe Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 (727) 451-6900 https://www.dolmanlaw.com/legal-services/medical-malpractice-attorneys/