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Unfortunately, not every act of medical malpractice justifies the filing of a formal claim for damages. There are many instances in which the filing of a claim would actually cause more harm than good. Some examples of claims that probably should not be filed are the following:
1. The patient, after experiencing a brief worsening of his or her condition, fully recovers.
2. The only real damages of any consequence of the medical malpractice are medical expenses that were fully covered by insurance.
3. The patient requires the continued care of the doctor who committed the malpractice.
It is advisable to discuss the potential benefits of a medical malpractice claim with an experience attorney in order to weigh them against any downside risks and disadvantages.
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Florida has very specific statutory steps that must be taken prior to the filing of a lawsuit for medical malpractice. These requirements are too numerous to detail here, but they include the following:
1. A review and evaluation of the relevant medical records by an appropriately qualified medical expert.
2. The execution of an affidavit by a qualified expert indicating in some detail an opinion that a breach of the standard of care occurred and that it resulted in an injury to the patient.
3. The forwarding of the affidavit with a letter of intent to file a lawsuit based upon medical malpractice to the doctor or other health care provider believed to be responsible for the misconduct.
4. Participation in a 90 day pre-suit discovery period during which certain information is provided by the attorney to the potential defendant or defendants and certain information is obtained from them.
5. Further evaluation of the facts, records and opinions during and after the 90 day pre-suit period in order to determine if the filing of a lawsuit is warranted.
6. The filing of a medical malpractice lawsuit against the responsible doctor or other health care provider within the statute of limitations.
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We know from studies at prominent hospitals by reputable universities that medical malpractice may occur as many as 10 times more frequently than ever comes to light through the claims process. We can reasonably assume that the same ratio is likely to exist in the medical care provided outside of hospitals.
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Yes, certain common patterns seem to occur more frequently than others. However, there are situations that do not seem to fit any pattern. A few of the common patterns of medical malpractice are the following:
1) failure to diagnose a condition or to diagnose a condition in time to treat it properly
2) failure to treat a condition properly
3) failure to monitor or observe the patient
4) failure to perform surgery properly
5) failure to order necessary tests
6) failure to consult with specialists
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The single most important factor is the ability to prove a very clear breach of the accepted standard of care by the doctor or other health care provider. The clearer the breach the stronger the potential claim. A close second factor would be the nature of the injury caused by the malpractice. A truly serious injury with long-term consequences in disability, lost income, or medical expenses is more likely to be worth the time and effort in making the claim than an injury less disruptive of a person’=s lifestyle and work.
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Most attorneys who are experienced in medical malpractice claims are willing to provide an initial consultation or review of the potential claim without charge. Carefully selecting a qualified attorney with the specialized skills required to represent the victims of medical malpractice is the first and most important step in obtaining a fair, objective evaluation of any potential claim. An experienced attorney is prepared to explain the circumstances that make a claim one worth further investigation or one not likely to be productive. He or she has no desire to pursue claims that have little chance of ever reaching a successful conclusion for the victim. And, the attorney already has in place a procedure in his office for the careful and fair evaluation of malpractice claims beyond the initial consultation.
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An experienced attorney would normally take the following initial steps:
1. An interview of the patient or surviving family member would be conducted to obtain the facts of the medical care and injury as well as any suspicions about possible acts of medical malpractice. The nature and extent of the losses or damages incurred as a result of the injury would be discussed. During the interview, it would also be important to obtain a relatively complete medical history of the patient.
2. The relevant medical records would be obtained. These would primarily focus on the period surrounding the possible medical malpractice, but would also include subsequent and prior records of importance.
3. An appropriately qualified medical expert or experts would be selected to review the facts and records and to consult with the attorney on the medical issues of the standard of care and the causation of any injury or death. This step is mandated by statutory law in the State of Florida.
4. The attorney would review the opinions and observations of the consulting medical expert or experts and, knowing the legal and practical requirements for a successful medical malpractice claim, determine whether or not the facts, records and opinions support the commencement of a claim.
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This is a question that can only be answered after consultation with an experienced medical malpractice attorney. The attorney should be sensitive to the impact of the claim upon you and your life. There should be a weighing of the probabilities of a successful outcome and the effort required in the pursuit of the claim.
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A patient or surviving relative has an important role to play in these matters. One is to provide accurate information to the lawyer evaluating and, eventually, prosecuting the claim for medical malpractice. Another is to finally decide, after full consultation with the attorney, whether or not to proceed with the making of a claim. Once the official claim process has started, there will be some required depositions or statements to be given to the opposition attorney. In each instance you will be prepared and represented by your attorney. There will also be a need to answer, with the assistancet of your attorney, written questions or requests for documents. In Florida, and some other states, there will likely be a mediation conference intended to explore settlement possibilities. Your full participation in the conference is required. Eventually, should the claim result in a jury trial, it would be necessary for you to attend and probably testify.
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Although there are state and local agencies or organizations that will receive complaints of medical malpractice, most experienced attorneys feel it is advisable not to file these complaints until an attorney is consulted. There are many consequences of the filing of complaints or claims that should be explored with an experienced attorney before steps of this nature should be taken.
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Medical malpractice is a negligent or careless act by a doctor, hospital, or other health care provider. It is the breach of the accepted standard of care that is recognized by other providers who are practicing with similar training in the same field of medicine. It can result from a failure to act or from acting improperly.
Examples would include: the failure to properly read an x-ray showing a cancerous tumor; the administration of an excessive dose of medication; the misdiagnosis of a life-threatening condition; surgery on the wrong limb; and failure to remove a surgical sponge at the end of an operation. There are many other circumstances of medical malpractice in the medical and legal literature.
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Probably the most likely indicator that medical malpractice may have occurred is the dramatically different or unexpected result of treatment or surgery. An example would be serious brain injury following relative minor surgery. Another telltale sign is the failure of the provider to give a good explanation for a worsened condition of the patient or of the sudden death of the patient. There are also instances in which nurses or doctors or other providers make critical statements of prior care. These statements sometimes turn out to be accurate indicators of medical malpractice even though they may never be repeated in a legal setting.
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It is extemelyextremely difficult for a patient or the relative of a patient to determine on their own whether or not medical malpractice has occurred. This is true because of the complexity of the medical and legal questions that must be answered. If there is a suspicion that medical malpractice has occurred it is advisable to consult with an attorney experienced in medical malpractice. This consultation is usually without charge. By the end of the consultation the attorney is usually able to answer the first question that should be asked, does this situation (including the injury or death) justify further investigation into the possibility that medical malpractice has occurred?@ In order to answer this question the attorney calls on his or her knowledge of the law of medical malpractice and the types of claims that have a reasonable chance of success. At the conclusion of the initial attorney consultation it is common for a plan of action to be set in motion for the further evaluation of the potential claim. This may include obtaining copies of all relevant medical records and the selection of a medical expert or experts to provide important opinions concerning the standard of care and the injury or death.
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In the State of Florida the Personal Representative of the Estate of the deceased patient is the designated person to bring a claim for a wrongful death caused by medical malpractice. This requires the opening of an Estate in order to obtain the appointment of a Personal Representative who is frequently a parent or spouse of the deceased patient.
The Personal Representative has the responsibility of identifying all of the potential beneficiaries of any recovery in a lawsuit filed for a wrongful death. In other words, the Personal Representative must act on behalf of all persons or entities having a right to damages as a result of the death.
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The statute in the State of Florida has several provisions that need to be carefully considered by an experienced attorney in light of the facts of any potential medical malpractice claim. It is difficult to state the applicable statute of limitations for medical malpractice claims in Florida without fully knowing the facts of a particular claim. The statute begins with a 2 year limitations from the date of the malpractice, but contains language that could extend that period to as long as 4 years and, in some instances, to even 7 years. In Florida it is also important to know the date when the malpractice was first known by the patient or the survivors of the patient. Because of the complexity and importance of the Statute of Limitations as it would apply to any particular medical malpractice claim, it is critical that an experienced attorney be consulted as soon as the suspicion of malpractice occurs. Once the period designated by the Statute of Limitations passes without proper action having been taken all rights to pursue a claim for medical malpractice are likely to have been lost forever.