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Victim Information

Medical MalpracticeMedical malpractice is a form of negligence where an injury results from the failure of a medical professional or medical facility (doctor, nurse, medical technician, psychiatrist hospital, or healthcare facility) to exercise adequate care, skill or diligence in performing a duty.

The duty required of a physician or health care provider is to meet the standard of care under the circumstances presented. The standard of care arises from the accepted practices and standards of reasonably prudent and careful professionals who are in the same community. At present, given the advances in technology, travel and communication, the standard of care is the same throughout the State of Florida, no matter where the doctor or health professional is located.

In the case of a doctor who is a medical specialist, the standard of care is determined by the standard of good medical practice in that specialty within the community. All of these factors are considered in light of the facts and circumstances of a given situation or case.

It is important to remember that the duty of a medical professionalis not the duty to cure, or even to guarantee a good outcome from treatment. Medical malpractice does not occur every time medical treatment is not successful. Rather, the duty is to provide good medical care according to accepted standards in the community, or, in the case of a specialist, accepted standards in that medical specialty.

Medicine is not an exact science, and doctors are not required to be right every time they make a diagnosis. A misdiagnosis can be arrived at even when all proper tests are performed accurately or evaluated by a skilled doctor with the utmost care. A misdiagnosis becomes malpractice, however, if the doctor fails to get a medical history, order the appropriate tests, or recognize observable symptoms of the illness. In Florida, in order to prove that you were injured due to the failure of a health provider you must show: (1) The health care provider failed to exercise a duty of care, and (2) The failure was the proximate cause of the injury.

Types of Medical Negligence

The concept of medical malpractice negligence is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. The most common cases brought against doctors are:

  • improper diagnosis
  • failure to diagnose
  • medication errors
  • surgical errors such as a slip of the knife severing a nerve during an operation
  • medical instruments, sponges, needles or other foreign objects dropped inside a patient and left there after surgery
  • errors in prenatal diagnostic testing
  • failure to advise of diagnosis
  • lack of informed consent
  • abandonment (failure to attend to a patient)
  • improperly prescribing a drug
  • failing to inform the patient of available treatments
  • continuing a treatment that has been shown to be ineffective
  • below standard treatment or incorrectly performed treatment

A doctor has a duty to you to use care and diligence to diagnose your illness so that the proper treatment can be recommended. In order to properly diagnose a condition, a doctor should ask about a patient’s medical history as well as his or her family’s medical history. The doctor also should ask for a detailed description of current symptoms and should perform a thorough examination which includes necessary diagnostic tests.

Example: After hurting your wrist you go to your family doctor, but he concludes it is just a sprain and doesn’t request an X-ray, which would have revealed a fracture. The fracture goes undetected and, as a result, a permanent and debilitating injury to your wrist results. The doctor may be negligent for failing to order an X-ray, or possibly for not referring you to an orthopedist.

Doctors also have a duty to disclose information pertaining to the treatment you will receive. If your condition is such that it is beyond the scope of practice of the examining doctor, or beyond the doctor’s expertise, he or she must refer you to a specialist. If your doctor fails to follow these basic principles, and injury is caused as a result, you may have a case for a malpractice claim. Medical malpractice can occur at any point in the diagnosis and treatment course. For example, the wrong chart could be placed at your hospital bedside, resulting in you being given medication that you are allergic to that causes serious harm or even death.

Florida Medical Malpractice Damages

Malpractice Boca RatonIn Florida, medical negligence claims are required to follow strict presuit requirements. These requirements involve having the medical records reviewed by medical experts in the particular area of medicine. If that review results in a good faith belief that there has been medical negligence, and that such was the cause of injury or death, we proceed to the next step.

Next, we get a written opinion from the expert that is served on the doctor, hospital or health care provider that begins the mandatory 90 day presuit period. During that period, the health care provider and/or their insurance company are required to investigate the claim. Most of the time the insurance company will deny the claim, as there seemingly is always some doctor who will step up to support a fellow doctor to defend a medical negligence case. Of all the civil cases that we handle, medical negligence cases are always the most contested and expensive cases to bring to a jury trial.

There are two types of damages available in a medical negligence, also referred to as a medical malpractice case; they are compensatory damages and punitive damages.

Compensatory damages

Compensatory damages are derived from the word “compensate,” meaning “to make up for” or “to make whole”. Generally, these damages can be broken up into two sub-categories – economic damages and human (or noneconomic damages). Economic damages seek to reimburse a plaintiff/victim for out-of-pocket expenses incurred, or financial losses sustained in the past, and those that are reasonably anticipated in the future. Economic damages typically include:

  • Medical, nursing and hospitalization bills incurred to treat your injuries
  • Medical, nursing and hospitalization costs for the future
  • Wages lost due to work missed
  • Loss of earning capacity in the future
  • Costs of household or nursing help during recovery
  • Costs of future medical equipment and services in the future
  • Support care in the future for the victims who require it

As noted, injured victims are entitled by law to recover human or noneconomic damages.  These damages are intended to include the things that don’t have a price tag, but are equally important elements of your damages. The monetary recovery for these elements of damage is recognized by law, past and into future, and they include:

  • Pain and suffering
  • Mental anguish
  • Loss of ability to enjoy life
  • Disfigurement
  • Scarring
  • Loss of consortium (benefits of a relationship)

Punitive damages

In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence – behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.

Example:

Based on a true story, if a doctor delivers a woman’s baby and then makes a small incision on her torso signifying that he was responsible for her children, the woman should expect significant punitive damages to be awarded against the doctor.

In more unusual cases, a patient may succeed in proving that a doctor promised a particular result from a medical treatment or procedure and failed to obtain the promised result. In these types of cases, it may be possible to recover damages from the doctor for the loss of the value of the successful treatment.

Damages are also available in cases where the plaintiff is able to prove that he or she was not provided with proper informed consent. The damages in such cases are different that in a typical negligence medical malpractice claim. As the premise for such cases is that the doctor treated the patient without their consent, the doctor may be liable for the wrongful touching of the patient, regardless of whether the treatment was successful.

Causation

A medical professional may have been negligent in providing care to a patient, but sometimes that negligence is not the cause of the injury suffered by a patient. Because the law requires a connection between fault and injury, not all instances of medical malpractice allow for an award of damages. Determining causation in medical malpractice cases can be complicated and usually requires the assistance of expert witnesses.

Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. In addition, expert testimony is required to establish that the malpractice caused the patient’s injuries, unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error.

In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining which of these practitioners may have been negligent, and how that negligence may have caused a patient’s injury, can be extremely complex. The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.

If you or a loved one has been injured as a result of possible medical malpractice, call Brotman Nusbaum & Ibrahim now at (888) 661-6266 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay. You may have a valid claim and be entitled to compensation for your injuries and damages, but timely action must be taken before the statute of limitations expires or the claim can be lost forever.

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