MEDICAL MALPRACTICE LAW

To succeed in a medical malpractice claim, the patient has the legal burden to prove two things in a court of law. First, that the physician or nurse, (or other health care provider) deviated from the standard of care, and secondly that it caused the harm the patient endured. “Deviation from the standard of care” means medical negligence or medical malpractice, as it refers to health care providers.

Medical Malpractice is defined under Fla. Statute 766.106 as follows:

  • “Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.

To be fair, health care providers cannot guarantee a good outcome. Even when proper care is delivered, bad outcomes can occur as a result of the patient’s underlying medical condition. Sick patients are harder to cure than healthy ones. Additionally bad outcomes can occur due to a recognized risk of surgery. The challenge of a successful medical malpractice result is discerning the difference.

The law helps us with this, by requiring us to obtain a written opinion by an “expert” meaning an individual in the same specialty as the allegedly negligent physician or nurse. For example, only a vascular surgeon can qualify to give an opinion that a vascular surgeon was negligent. The first step in evaluating a potential medical malpractice lawsuit is obtaining the medical records and having them reviewed by an expert. If the expert opines there was a deviation from the standard of care and in addition, caused the harm, then we can move forward with the claim.

Like any discipline, law and medicine have their own distinct terms and language. In the medical world, a “medical error” is a preventable adverse event causing injury. This more or less equates to medical malpractice.

My nursing background and medical malpractice experience gives me the benefit of being bilingual in the language of law and medicine], so to speak, which is an advantage in these complex cases.

EXAMPLES OF MEDICAL MALPRACTICE/MEDICAL ERRORS:

MEDICATION ERRORS

  • Ordering the wrong kind of medication
  • Ordering the wrong dosage of medication
  • Failing to timely discontinue the medication
  • Failing to check for known drug interactions
  • Ordering medication that the patient has a known allergy to.

Medical/Surgical Errors

  • Performing unnecessary surgery
  • Leaving a surgical instrument inside the body
  • Operating on the wrong side of the body
  • Failing to timely recognize surgical complications
  • Removing an endotracheal tube too soon
  • Failing to act on alarming test results or vital signs
  • Failing to do proper follow up
  • Missing an obvious diagnosis

Nursing Errors

  • Giving medication to the wrong patient or in the wrong dosage.
  • Failing to notify the physician of a significant change in condition.
  • Not recognizing a significant change in condition.
  • Failing to follow up on a dangerous vital sign reading or symptomv
  • Failing to follow the physician’s orders
  • Not acting as a patient advocate.

DAMAGES RECOVERABLE IN MEDICAL MALPRACTICE CASES

If a patient dies as a result of medical malpractice, then their spouse or any children under the age of 25 can recover for the pain and suffering and loss of support and services past and future, as well as related medical and funeral expenses.

If a patient survives as a result of medical malpractice they are entitled to recover damages for pain and suffering, disability, disfigurement, inability to enjoy life, past and future medical expenses, and past and future loss of income.

STATUTE OF LIMITATIONS

A statute of limitation is a deadline in which to bring a claim. The deadline for bringing a medical malpractice claim is two years from the date the incident/injury occurred, or two years from the time it was discovered that the incident/injury was caused by medical malpractice. In no event, (except injury to minors) can it be brought after four years from the date of the incident/injury. Time is of the essence to contact a lawyer, if you or a loved one believe you may have a case.