Doctors and other medical providers are required to diagnose and treat patients by following an established standard of care. Failure to do so may result in liability for the medical professional and the facility that employs them.
If you were injured due to a medical error, Florida law has a process through which you may collect compensation for the injury-related expenses you have incurred and the impacts your injury or illness has had on your life. A Bradenton medical malpractice lawyer at Dolman Law Group can help you determine if you qualify.
What Is Medical Malpractice?
Medical malpractice is defined as the failure of a healthcare provider to adhere to a developed standard of care that another reasonably prudent healthcare provider would have provided in the same circumstances. According to researchers at Johns Hopkins University, medical malpractice is the third-leading cause of death in the United States, behind only heart disease and cancer in its prevalence.
Some common causes of medical malpractice lawsuits include:
- Failure to diagnose or misdiagnosis: If another 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 worsen a patient's medical condition or lead to death.
- Failure to treat: This occurs when a doctor properly diagnoses a condition but fails to provide treatment per the commonly accepted standard of care for that condition.
- Surgical errors: These include wrong-site surgery or a surgical instrument or sponge being left in the body cavity.
- Anesthesia errors: These mistakes can cause catastrophic injuries, including brain damage or even death.
- Birth injuries: These include inadequate treatment of pre-existing conditions during pregnancy, 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 a procedure. Failure to disclose all pertinent details or garner consent before performing the procedure can result in liability.
- Failure to address patient history: This includes failing to take an accurate patient history or consult a patient's history before prescribing treatment.
- Medication errors: These include dosage errors, prescribing the wrong kind of medication, or prescribing a medication that is inappropriate for the patient based on their 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 independently or require 24-hour nursing care. These facilities are often certified to accept Medicare and 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 aide, medical malpractice is potentially an option.
- Errors made by staff in alcohol and drug treatment facilities: As with nursing homes, some of the care obtained in these facilities 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 healthcare 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:
1. 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 directly.
2. 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 regarding how they would have responded in the same situation.
3. 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.
4. The Injury Resulted in Significant Damages to the Patient
Not all medical errors or deviations from the standard of care leading to an injury will result in 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 this outcome could result from 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 Patients Can Recover in a Medical Malpractice Case
The damages that an injured patient can recover in a medical malpractice case in Bradenton may include:
- Past, current, and estimated future medical expenses to treat the injury that medical negligence caused
- Lost wages due to missed work 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 earn the same salary as they did before the injury
- The cost of household services the claimant previously performed but now must hire someone else to perform due to their injuries
- Emotional or physical pain and suffering
- Emotional distress or mental anguish
- Loss of enjoyment of life
- Punitive damages, which are designed to punish the defendant for particularly reckless or reprehensible behavior in some cases
Bradenton Medical Malpractice FAQ
In 2018, the family of a Bradenton 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, which 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, despite the order to check him every 15 minutes. The lawsuit accuses the facility staff of failing to follow its 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 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 another 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 violating the standard of care resulted in significant damages.
Medical malpractice claims often depend on medical experts who will testify in court regarding the standard of care expected for the treatment you were undergoing when the negligence occurred.
What Types of Lawsuits May Be Filed in Medical Malpractice Cases?
Negligence by a health care provider can result in injury or death. Therefore, the types of civil actions that are filed in medical malpractice cases include:
- Personal injury lawsuits: Individuals injured by medical malpractice may file a personal injury lawsuit within four years of the date of the injury.
- Wrongful death lawsuits: A medical malpractice wrongful death lawsuit must be 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 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 believed to be the third-leading cause of death in the U.S., causing an estimated 250,000 deaths each year.
What Are the Common Causes of Medical Negligence?
Some of the common causes of medical malpractice lawsuits as a result of medical negligence include:
- Failure to diagnose: This is the most common subject of medical malpractice lawsuits, which happens when doctors miss diagnosing significant conditions, such as heart attacks, stroke, breast cancer, lung cancer, appendicitis, diabetes, high blood pressure, and more.
- Injuries caused during treatment: Some malpractice suits filed against physicians pertain to treatment that did not improve the patient's health, but instead worsened it.
- Failure to treat: 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 patient's treatment can result in injury or death.
- Medication errors: 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: This includes failing to evaluate a patient's medical history before prescribing a medication or verbally communicating the risks associated with a specific course of treatment.
- Consent errors: These include failure to obtain informed consent or improperly obtaining consent with a patient for a medical treatment.
- Failure to provide follow-up care
- Surgical errors: These include leaving a surgical item, such as a sponge or towel, inside a patient's body or performing surgery on the wrong body part.
- Unnecessary surgery
What Is Informed Consent, and Why Does Failing to Provide it Constitute Medical Malpractice?
Doctors are required to 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 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, they 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 they knew or had reason to know that the drug was unsafe. If a doctor prescribes a drug and later the Food and Drug Administration (FDA) 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 their products are safe when used as directed.
If I Signed a Consent Form Before a Procedure, Does This Mean I Don't Have a Valid Medical Malpractice Claim If I Have a Bad Outcome?
If your bad outcome resulted from 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 resulted from 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 before or during the procedure deviated from the standard of care provided by most surgeons who perform that 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, they 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 they 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 these 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 to 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. However, the bill did not pass.
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 their employment
- An independent doctor if they failed to supervise the provision of the medication directly
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 a unique 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 the injury has had and will have on their 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 will be.
How Do I Know If My Case Constitutes Medical Malpractice?
It is often hard for individuals to know if the injuries they have received are simply a bad outcome of a procedure or condition or 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?
You are not legally required to hire an attorney to pursue a medical malpractice lawsuit. However, 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 also require thorough knowledge about the legal process of obtaining compensation through a medical malpractice lawsuit in Florida.
The insurance companies that 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 may be at a distinct disadvantage if they attempt to recover damages on their own. For this reason, many injured individuals seeking compensation choose to employ 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, most medical malpractice claims are settled outside of court. The insurance companies and attorneys representing medical professionals often realize that a particular case will result in a large payout if it goes to court. Thus, to reduce the amount of money being paid out in court fees, 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—the amount 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 your injury has had on your life. Any settlement that does not account for the entirety of your injuries 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 people can do to reduce their chances of becoming victims of medical malpractice, including:
- Do research to understand the medical condition you have been diagnosed with. 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 properly diagnose 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 they are recommending, ask questions. If you feel they are not answering your questions to your satisfaction, seek a second opinion.
- Take a trusted friend or family member to your doctor's appointments with you. The 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 you are not receiving proper medical care, look for another doctor.
What Is the Statute of Limitations For Medical Malpractice Lawsuits in Bradenton?
Although the statute of limitations for personal injury lawsuits in Bradenton is four years under Florida Statutes § 95.11, the statute of limitations for medical malpractice claims is different. Under Florida law, when you are filing a medical malpractice claim in Bradenton or anywhere across Florida, you will have just two years to get your claim filed before the statute of limitations expires.
However, this deadline can often be unclear depending on when the accident occurred, when you learned of your medical malpractice-related injury or illness, and other factors. With the statute of repose in place, depending on when you learned of your injuries, you could have up to seven years from the date of the initial accident or medical error to file your claim before the statute of limitations runs out.
You should also note that if a family member passed away due to medical malpractice, instead of filing a medical malpractice lawsuit, you would instead file a wrongful death lawsuit.
Is It Possible to Share Fault for a Medical Malpractice Injury or Illness? If So, How Will It Impact My Case?
The state of Florida follows a pure comparative negligence system under Florida Statutes § 768.81. This means you are not barred from financial recovery for sharing fault for your injuries. However, you can expect to be held accountable for your portion of culpability.
You can expect your injury settlement to be reduced in proportion to your percentage of liability. For example, if you failed to follow your healthcare provider's treatment protocol as prescribed, the judge may find you 25% liable for your injuries, which means you would only be able to collect 75% of your injury settlement.
Sharing fault for your injury or illness in a medical malpractice lawsuit can have a dramatic impact on the amount you are awarded. Your attorney can advocate for your right to fair compensation.
What Types of Injuries and Illnesses Are Seen Most Often in Medical Malpractice Lawsuits?
Many victims of medical malpractice may be unsure whether they have grounds for a claim. Some types of injuries and illnesses are seen more often in medical malpractice lawsuits than others. These include:
- Birth injuries
- Broken and fractured bones
- Traumatic brain damage
- Post-traumatic stress disorder PTSD
- Spinal cord damage
- Neck, head, and back injuries
- Burn injuries
At Dolman Law Group, 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 due to medical negligence in Bradenton, our personal injury attorneys are available to help you understand your legal options. We have offices across both Florida coasts, and you can easily reach Dolman Law Group at (941) 613-5747 or by contacting us online.
6703 14th Street West Suite 207
Bradenton, FL 34207
Phone: (941) 613-5747
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