As a patient, you have the right to expect physicians, other medical professionals and health care facilities to provide a certain medical standard of care. Medical malpractice—sometimes referred to as medical negligence—can occur when a violation of that standard results in an injury that was caused by negligence and that has significant damages associated with it. At Harrell & Harrell, P.A., our expert medical malpractice lawyers can help determine if you have a case, accurately calculate damages, and work to ensure your or your loved one’s rights are protected. Read on to learn more about this complex area of personal injury law.
How To Prove Medical Malpractice
Medical malpractice can apply to more than doctors and nurses, anyone that provides medical care can be responsible, including hospital or healthcare administrators and support staff. Medical malpractice has become more common and a growing problem in the United States in recent years. Those seeking compensation after suffering harm due to medical malpractice need to prove the following four elements of a case:
A Doctor-Patient Relationship Existed
You can generally only sue a medical professional for medical malpractice if they treated you and a doctor-patient relationship existed. You would not have a case, for example, if a doctor happened to provide some medical advice at a dinner party.
The Doctor Was Negligent
Medical treatments sometimes fail to cure a patient or offer relief for their condition. While this can be frustrating and upsetting for patients, an unsuccessful surgery or treatment does not necessarily mean you have a medical malpractice lawsuit. To have a case, a medical professional must have acted negligently, causing injury to the patient. Without the expertise of medical experts and a medical malpractice lawyer, injured individuals may find it extremely challenging to prove that a doctor deviated from the standard of care.
The Doctor’s Negligence Caused Your Injury
Since the plaintiff in a medical malpractice lawsuit typically already suffered from a medical condition, it can be challenging to prove that a doctor caused further injury or aggravation of an existing condition. The burden of proof is on the injured patient to show that the doctor’s negligence caused their injury and financial losses. Medical expert testimony is usually required to prove a link between the patient’s injury and the doctor’s negligence.
You Have Damages
If you have not suffered harm and damages, you do not have a medical malpractice claim. Damages in a medical malpractice case can include but are not limited to:
- Medical bills
- Income loss
- Pain and anguish
- Loss of life quality
What Is the Difference Between Medical Malpractice and Medical Negligence?
Medical malpractice and medical negligence are not the same. Medical negligence can arise when a doctor or other medical provider makes an unintended mistake, causing a patient harm. Medical negligence, unlike medical malpractice, does not involve intent.
Medical malpractice occurs when a doctor intentionally fails to follow the adequate standard of care, causing significant harm to a patient. Medical malpractice can be tougher to prove than medical negligence. However, an experienced medical malpractice attorney can help to assess and prove your case.
Most Common Examples of Medical Malpractice
Medical malpractice can arise in a variety of circumstances. Some of the more common medical malpractice claims can involve:
Misdiagnose or Failure to Diagnose
If you have a medical condition that’s harmful, but you were either incorrectly diagnosed or the diagnosis was significantly delayed, this may reach the standard of medical malpractice. Ways in which this can happen include when a medical professional does not appropriately investigate symptoms, or fails to screen for a medical issue that another doctor with similar training and experience would do. Other forms include when lab tests are misinterpreted or when a patient is not appropriately referred to a specialist for additional testing or care.
Operating Room/Surgical Errors
There are multiple ways in which surgical errors can be considered medical malpractice, ranging from sterilization techniques not being properly followed to other patient prep issues. It can also include the wrong procedure being performed on a patient or the patient not being securely placed in a gurney.
Improper surgical care can lead to blood clots and cauterization burns, post-op infection and much more. It can worsen current medical conditions, create new ones—and, in the most serious cases, lead to death. In some cases, patients may not even be aware that their post-surgical problems are a result of medical malpractice.
Birth-Related Injuries
When birth injuries occur, a time that should have been joyful could, instead, be the exact opposite. Not all birth injuries are because of malpractice; ones that are typically fall into one of two categories:
- When prenatal care is not appropriately given, including prescribing medicines given that can harm the fetus
- When injuries occur because the doctor didn’t appropriately assess a situation or respond appropriately
This type of medical malpractice can occur through improper assessment of a baby’s well-being in the womb; the improper use of forceps or other medical devices; a failure to perform a cesarean section, and more.
Failure to Follow Procedures
Medical malpractice may occur when a doctor or other medical service professional breaches required standards of care by not following appropriate procedures. This can cover a broad range of missteps, including not having another doctor on call to cover patients, not following up with necessary tests, prematurely discharging someone from the hospital and/or not providing appropriate follow-up instructions, inappropriate post-surgical care and more.
Defective Medical Devices
Examples of defective medical devices include:
- Stryker Rejuvenate hip implants: This is a modular, non-metal hip implant used for people with degenerative joint conditions. The function of this hip implant is to boost mobility and relieve pain, but failed components can corrode and this can lead to multiple conditions: premature device failure, along with metallosis, elevated cobalt levels, pseudo-tumor formation, and osteolysis.
- Metal-on-metal hip implants and/or knee implants: Multiple manufacturers have created metal-on-metal joint implants without warning of possible dangers. These manufacturers include DePuy, Zimmer, Stryker, Wright Medical and others, with dangers including premature failure, plus a breakdown of metallic surfaces, abnormal wear, and elevated chromium in the blood causing metallosis and pseudotumor formations.
Nursing Home Neglect or Abuse
Signs of nursing home neglect or abuse can include unsanitary living conditions, failure to provide personal hygiene services, unanswered calls for help, concerns about adequate nutrition, and an increasing numbers of injuries, often unexplained. Nursing homes are required, through the passage of the Nursing Home Reform Act of 1987, to provide residents with the “highest practicable” degrees of care that’s necessary to achieve and maintain the well-being of residents, including their physical, mental, and psychosocial well-being. This act also codified nursing home patient rights, including the right to freedom from abuse, mistreatment, and neglect, among others.
Medication or Pharmacy Errors
Medical malpractice related to medications can originate with doctors or nurses, hospitals or pharmacies, and even the manufacturer of the medication. Ways in which errors can rise to the level of malpractice include prescribing a medication that is known to trigger a person’s allergies or one known to negatively interact with other medications being prescribed for or otherwise taken by the patient. Failing to share common side effects is another potential area, as is an administration of the wrong medication or the wrong amount or when medications are mislabelled.
Ineffective or Delayed Treatments
Ineffective or delayed treatments can be considered malpractice if a medical service professional does not use knowledge and skills that a similar doctor under these conditions would use. If, for example, you tell your doctor that your chest burns and you can’t comfortably breathe, and you get diagnosed with a cold that is really a serious case of pneumonia, that may fit within the medical malpractice standards. If the standards of care are not effectively met and you’re harmed by the delayed treatment, this is a situation that can be further explored by a qualified attorney.
Emergency Room Malpractice
An emergency room, by its very nature, is often filled with people who are experiencing significant illness or injury, typically with a sudden onset. Required standards of care in an emergency room are often not the same as they may be in your primary care physician’s office, but medical malpractice can still occur when emergency care provided is substandard.
Misdiagnoses can occur when an emergency room doctor does not collect enough information, carefully listen to the patient or take enough time to properly present a diagnosis. Perhaps necessary tests were not ordered, or they were given but inaccurately interpreted. Medications can be inappropriately prescribed, patients can be discharged too early and so forth.
Failure to Properly Monitor the Patient
Improper monitoring can lead to medical malpractice situations during and after surgery. Standards of care require that patients are carefully monitored when they are under anesthesia as well as when they are awakening from its use; that they are appropriately monitored for post-surgical infections; discharged only when ready; and that they receive appropriate follow up care. As other examples, doctors are required to appropriately monitor a child and mother during and after childbirth; when patients are on prescription medications; when follow up tests are indicated; and more.
Healthcare Facility or Hospital Errors
Errors range from diagnostic ones to improper medications being given. Hospitals are required to inform patients of all risks when providing treatment, including with medications given and procedures undertaken. Patients must give consent before surgery; when hospitals don’t obtain it, this can form the basis of an informed consent lawsuit. Errors can occur when anesthetic is being given, when a child is being born, and when a patient is in the emergency room or being transported.
Negligent Abandonment of the Patient
When a doctor-patient relationship exists, and the doctor abandons the care of the patient when he or she needs medical care without the patient being able to find a replacement physician—and the patient suffers as a result—this can form the basis of negligent patient abandonment. This is a potentially serious, but over overlooked, form of medical malpractice.
How Can a Medical Malpractice Lawyer Help Me?
Medical malpractice cases can be complicated, challenging to prove, and expensive to litigate. Proving medical malpractice generally relies on the testimony of medically qualified expert witnesses. An experienced medical malpractice attorney at Harrell & Harrell will take charge of your case and work hard to hold the responsible medical professional or institution to account for your injury and suffering.
A dedicated medical malpractice lawyer can help you in several ways:
- Preparing and filing the paperwork for your lawsuit
- Collecting evidence to prove medical malpractice
- Assessing your damages and future expected damages
- Providing expert witnesses to strengthen your case
- Representing you strongly in and out of court
No-Win-No-Fee
Most medical malpractice attorneys work with a contingency agreement, which means you do not have to pay any attorney’s fees upfront. Your attorney will get paid if and when they win the case and you receive compensation.
What Damages Can I Recover in a Medical Malpractice Case?
If you or a loved one suffered injuries due to medical malpractice, you could recover damages with a personal injury lawsuit. Since every medical malpractice case is unique, compensation tends to vary depending on the injury. However, victims can generally seek a variety of economic and non-economic damages.
Economic Damages
Economic damages directly relate to a victim’s financial losses due to the injury and can include:
- Current and future medical costs
- Lost wages and future lost income
- Household assistance
- Costs for a home health aide
- Miscellaneous out-of-pocket expenses
Non-Economic Damages
Non-economic damages are designed to compensate victims for their intangible losses such as pain and emotional distress. In medical malpractice cases with catastrophic or disabling injuries, non-economic damages can make up a considerable portion of a settlement and can include:
- Physical pain and suffering
- Emotional anguish
- Reduction in life quality
- Permanent disability
Malpractice lawyers can advise you on the types of damages you could seek and the value of your specific case.
How Long Do You Have to Sue for Medical Malpractice in Florida?
Determining the right timing of your lawsuit in Florida can be somewhat tricky since the time limits for filing a suit vary depending on the circumstances of your particular case. Victims of medical malpractice in Florida generally have up to two, and in some instances, up to four years to file their claim, according to Florida Statute §95.11. However, if a medical provider fraudulently concealed their medical negligence, you may have up to seven years to file your case.
If you believe that you have a medical malpractice case, contact an attorney as soon as possible to determine the best timing for filing your case.
Time can be of the essence in medical malpractice cases. Once the deadline for filing your case has passed, you may have lost your rights to recovering compensation.
When You Need a Medical Malpractice Lawyer
In most cases, medical providers do good work and exercise reasonable care. Sometimes, though, mistakes are made and damages are suffered. In the latter case, one or more entities may be liable for damages.
Because it’s highly unlikely that healthcare providers will simply admit to a breach of duty caused by negligence, a medical malpractice attorney is typically needed for you or a loved one to receive compensation. Don’t delay in seeking legal help, as there are specific timelines in which you can pursue remedies for medical malpractice.
If you suspect medical malpractice, contact us for a free, no-obligation consultation to determine the strength of your case. At Harrell & Harrell, P.A., we treat clients like family, and you’ll get to know everyone involved in your malpractice case. To get started, contact our experienced medical malpractice attorneys online or call 800-251-1111.