We place our very health into the hands of medical professionals when we visit them. When they fail to behave responsibly or to uphold their duty of care, they should be held responsible for their actions; at our firm, we are committed to doing everything we can to see that they are. Below, we help to explain some of the most commonly asked questions about medical malpractice. If you have further questions, or if you have questions specific to your case, please do not hesitate to reach out and contact our firm today. We look forward to hearing from you.
What exactly is medical malpractice?
Medical malpractice refers to any instance where the medical treatment which is received by the plaintiff does not adhere to commonly accepted standards of healthcare. There, however, are many faces to medical malpractice. In some cases it can be misdiagnosing an illness, failing to diagnose entirely, having an error in surgery or in the emergency room, giving the wrong medication or incorrect dosage, or even failing to treat. Therefore, medical malpractice is not limited to one area of the medical field; instead, it can apply to treatment given by any type of physician—from plastic surgeon, to pharmacist.
What is the "duty of care"?
A common phrase which is used in medical malpractice cases is that of a physician's "duty of care." Put into its simplest terms, a duty of care refers to the legal obligation that a medical professional has to follow a certain standard of reasonable care during the course of their care for a patient. In cases which involve negligence—such as medical malpractice—this is often the first element which must be proven. In the state of Florida, duty of care is put to the foreseeability test; in essence, whether or not a duty of care exists rests on whether or not the defendant could foresee harm coming to the plaintiff from their actions.
What are the elements of a medical malpractice case?
If you are considering pursing a medical malpractice claim or filing a lawsuit, it is important to know that there are certain "elements" which must be filled. These are three separate points which must be shown to prove that there is even a medical malpractice case to begin with. First, it must be shown that there was a doctor-patient relationship, which would set the foundation to proving the existence of a duty of care. Second, it must be shown that the physician was negligent in some form by failing to adhere to the reasonable standard of care. Third, there must be an established link between the physician's negligence and harm suffered by the patient. Fourth, it must be shown that there was indeed harm suffered by the patient.
I just learned something "might" have happened—can I sue?
Medical situations often result in frightening "what if" situations, which can be extremely distressing to hear about after the fact. That being said, the law often does not deal in what might have potentially happened—only in what actually happened. Therefore, you will find there are few scenarios where you can sue over a situation that didn't actually happen, especially if you can't prove the elements above.
What are the chances my case will go to trial?
Due to the scope of medical malpractice cases, they are settled far less often than other more common personal injury claims, such as car accidents. That being said, it is impossible to say whether or not your case will go to trial without knowing the specifics of your case. In some situations, a settlement may be possible through aggressive out-of-court negotiations and, in other cases, it may not be enough. For this reason, it is important that you are working with a Miami medical malpractice lawyer who is prepared to go to court.
I was misdiagnosed—do I have a case for certain?
One of the most commonly cited forms of malpractice is misdiagnosis, otherwise known as misjudging the symptoms of a patient and diagnosing with the incorrect illness. While this can be a damaging circumstance, it is important to recognize that not every case of misdiagnosis is going to qualify as medical malpractice. After all, the law doesn't require that a doctor is always correct, 100% of the time.
Rather, the law requires that physicians adhere to the standard of care accepted by the state. So, yes, in some cases, misdiagnosis may qualify as a medical malpractice case—especially if three elements explained above are satisfied. Some cases where misdiagnosis may become medical malpractice because of negligence on the physician's behalf include if the physician was sloppy in running the tests, failed to check your medical history and more.
I signed a consent form. Does this mean I waived my rights?
Patients are often required to sign a consent form or a waiver before accepting medical treatment; this, however, does not mean that the physician is clear from accepting any liability from medical malpractice. In most cases, the consent form and waivers are simply there to indicate that the patient was properly informed of the nature of the treatment, potential alternative treatments, the risk of the treatment, and was given an opportunity to ask questions. This, however, does not mean that if the physician was negligent and did not adhere to the acceptable standard of care that you cannot pursue legal action.
What is Florida's statute of limitations (SOL) for medical malpractice cases?
The statute of limitations (SOL) refers to the window of opportunity that you have to pursue a case; these vary state-to-state, as well as the type of case. In the state of Florida, the statute of limitations in regards to medical malpractice cases is two years, with the discovery rule; there is a maximum of four years from the time of the malpractice. It is specified that the SOL is in regards to minors who are at least eight years or older; if anyone younger than that is victimized by medical malpractice, the case must be brought by the time that they turn eight years or old or within SOL, whichever is the greater period of time.
Facing a medical malpractice case can be one of the most confusing scenarios that you will ever face, but you don't have to do it alone. By getting the involvement of a Coral Gables personal injury attorney from our firm, you can rest assured knowing that you an attorney in your corner who truly cares about your best interests. Throughout our years of practice, we have been involved in countless personal injury cases and have earned numerous awards and accolades. For example, Attorney Joseph A. "Tony" Mesa, III has been selected for inclusion in the Super Lawyers® Rising Stars℠ Edition by Florida Super Lawyers® Magazine; he has also been named as a Florida Elite "Up and Comer" by Florida Trend Magazine for 2010, 2011 and 2012.
If you are interested in learning more, or scheduling your initial case consultation, simply give us a call at 888-897-7230 today!