Hospitals, doctors, nurses and other medical providers must perform their duties with care. In the event that they provide negligent medical services, the results can be devastating and often cause injury or death to a patient.
Because the results of this medical negligence and carelessness are all too often devastating, the patient or the patient’s survivors may have the right to sue for damages.
By hiring a medical malpractice attorney, patients or their survivors can receive help in finding financial restitution for many forms of medical negligence.
Types of Damages Recoverable for Medical Malpractice
If an individual decides to hire a medical negligence lawyer and pursure a medical malpractice case, there are two basic types of medical malpractice damages that may be applicable to them:
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Actual damages- This is compensation for an injury or loss as a direct result of another’s act or failure to act. In a medical malpractice case, this may refer to compensation for the cost of additional treatment, loss of wages, loss of future wages, and pain and suffering.
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Punitive damages- This is a compensation sum that is awarded by the court when medical malpractice is the result of reckless or willful behavior on the part of the physician. This amount is used to “punish” the provider so as to deter this behavior in the future.
Comparative Negligence
In some states, there may be medical malpractice laws that apply to determine if a patient shares some of the negligence for a medical injury. This type of negligence refers to finding a portion of the fault with the patient, called comparative negligence.
If a patient is found to be partially negligent for their injury, the amount of damages they receive is determinant upon what portion of the fault they assume for their injury (i.e. if a patient is 40% responsible for the injury, they may be able to recover only 60% of the associated medical negligence damages.)
How Long Will it Take to Resolve My Medical Malpractice Case?
There is not a specific time period allotted to resolve a medical malpractice case, typically because there may be a range of complex issues that a hospital negligence attorney may have to resolve.
However, resolution of this type of case typically ranges from approximately one to six years, with the average being around two to three years.
Reasons for delay may include:
Appeals- Often times, the request of an appeal will slow down the resolution of a case. This is simply when a defendant or plaintiff makes a motion to challenge a previous ruling or decision by requesting a formal change.
Obtaining medical records- Sometimes there can be difficulty or long waiting periods in obtaining the necessary medical records in order to build the claims of a medical malpractice case.
Unclear malpractice- The case may take a medical malpractice attorney longer to settle if the fault or negligence of malpractice is not clearly attributed.
Settlement delays- Often, negotiations for a settlement amount may not be agreed upon by both the plaintiff and their negligence attorney and the insurance company representing the defendant. When this happens, further negotiations or an action to file suit may be made.
State statutes- Each state may contain different statutes reflecting certain terms and restrictions involved in resolving a medical malpractice case.
How Can I Determine if Medical Malpractice has been Committed?
Sometimes it is difficult for a patient to determine on their own whether or not medical malpractice was committed or if it was the cause of their injury. This is often the case because victims of medical malpractice often have to answer complex medical and legal questions in order to prove the negligence of a health care provider.
Sometimes, the only legal way to prove that medical negligence has occurred may be to have an expert medical witness examine the case and make an expert opinion (acting as if they had operated in a similar capacity as the allegedly negligent provider.)
If a patient has a suspicion that medical malpractice occurred as a result of a provider’s negligence, it is advisable that they first consult with an attorney experienced in medical malpractice law. A medical negligence attorney is usually able to analyze the patient’s situation and decide if further investigation is justified in determining whether medical malpractice has occurred. Also, they can assist in finding an expert medical witness to attest the negligence.
When Should I Suspect the Occurrence of Medical Malpractice?
Although medical malpractice is often hard for a patient to determine on their own, there may be some indicators to suggest negligence occurred. One indicator may be if a patient experiences a dramatically different or unexpected result after treatment or surgery. For example, if a patient experiences a serious brain injury following a “minor” surgery, this may signal that malpractice has occurred. Another sign may be if a provider fails to give a reasonable explanation for a worsened condition or the sudden death of the patient.
Some common patterns
Although each medical negligence case can be unique and apart from each other, certain patterns may occur more frequently than others. A few common patterns seen in medical malpractice may include when a physician does the following:
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Fails to diagnose a condition or to diagnose a condition in time to treat it properly
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Fails to treat a condition properly
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Fails to treat a condition in a timely manner
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Fails to monitor or observe the patient
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Fails to perform surgery properly or to give anesthesia properly
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Fails to order necessary tests
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Fails to consult with a specialist before making a diagnosis
Should I Report an Act of Medical Malpractice?
If you believe that you have been a victim of medical malpractice, one of the best solutions is to report it. However, it may be advisable to consult with and potentially hire a medical malpractice attorney first in order to know your rights and receive legal counsel.
Although there are state and local organizations that will receive complaints of medical malpractice, there is always an option to wait to file these complaints until a medical negligence lawyer is consulted. In some cases, there may even be consequences associated with filing complaints or claims before exploring options with an experienced attorney.
What If I Have Moved?
Filing a medical malpractice case can become a little trickier if the alleged victim has moved to a different state after receiving the medical treatment. Typically, these type of cases are reported in the location where the malpractice occurred or (specifically to Florida statute) where the defendant resides. This means that the plaintiff may not move to a different state and expect to sue the health care provider positioned in that new location.
When Should I Not Make a Claim for Damages?
When a medical malpractice claim emerges, there is a chance for an injured victim to receive financial compensation for their losses. The amount of these damages varies depending on the claimant’s situation and the extent of the malpractice. Unfortunately, not every act of medical malpractice justifies the filing of a formal claim for damages.
Some instances where a claim may not be justified or damages may not be awarded can include:
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The patient makes a full recovery although briefly experiencing a worsening of his or her condition beforehand.
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The only real damages of any consequence of the medical malpractice are medical expenses that were fully covered by insurance.
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The patient requires the continued care of the doctor who committed the malpractice.
Medical Malpractice Statute of Limitations
A statute of limitations is a time limit, determined by law, which sets a deadline for filing certain types of suits. If a claim is filed after this deadline passes, the suit may not be permitted or even thrown out. Each state adopts its own varying statute of limitations for different types of cases.
Filing a Claim
In the state of Florida, the statute of limitations for medical malpractice typically extends for two years from the date of the malpractice incident or two years from the date the patient (sometimes including parent and guardian) discovers or should have discovered the malpractice. This means that a claimant has two years from the incident or upon discovery of the malpractice to file a claim. However, the statute also provides an extra two year extension, claiming that the action to file may not occur after four years from the date the original incident that caused the injury occurred. In Florida, it is important to know the date when the malpractice was first known or should have been known by the patient or the survivors of the patient.
Fraud
The period of limitations for the state of Florida may be extended further if it is found that any act of fraud, concealment, or intentional misrepresentation of fact was used by a medical provider to prevent the discovery of the injury. In this case, the limit is extended forward two years from the time the injury was discovered or should have been discovered. For this type of case, the action to file may not occur after seven years from the date the original incident that caused the injury occurred.
Exercising Due Diligence
Each patient is responsible for exercising due diligence for the medical treatment they receive. This means that any questionable treatment should be followed up with a reasonable inspection or second opinion in order to discover if any injury has occurred to them. Although the patient may discover that malpractice occurred over two years after the original incident which caused it, the courts will determine if they should have known about the injury sooner.
Consulting with an attorney
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 medical misdiagnosis attorney be consulted as soon as the suspicion of malpractice occurs. An attorney can consider each provision within Florida’s statue and provide counsel to the facts of the claim. If the period designated by the statue of limitations passes without the alleged victim taking proper action, all rights to pursue a claim for medial malpractice may be lost.
What to Expect When Making a Medical Malpractice Claim
If you decide to talk with a hospital negligence attorney before filing for a medical malpractice claim, there are certain events you can expect:
- An initial attorney consultation will be held to determine if your case has validity and if any damages may be recovered.
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A plan of action may follow for the further evaluation of your potential claim. This includes obtaining relevant medical records to use as evidence and other important facts to establish credibility to your claim.
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In order to have a case, negligence on behalf of the medical provider will need to be proved. This means that any injuries sustained from the negligence and statements from hospital workers will have to be gathered in a timely manner to provide additional evidence of your claim.
Some common themes surrounding negligence that you may need to prove include the following:
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That a duty was owed by the hospital or health care provider to act within the standard of care given to all patients
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That the provider failed to provide this standard of care
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That this negligence caused a direct injury to the patient
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That the injury also resulted in losses to the patient in the form of damages. If damages cannot be proved, a medical malpractice suit may not be applicable even if the provider was negligent.
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The final step in a medical malpractice case is to establish causation between negligence and injury. This means that there must be a clear causal relationship between the alleged medical provider’s negligence and the injury to the patient. To establish this link, a medical expert may be selected to provide their opinion on the situation. They will examine the situation in order to provide their take on the standard of care you received and show if the negligent treatment was the cause of the injury or death.
Why Do I Need a Lawyer?
Medical malpractice cases are all unique and can include many different facets of information and provisions. In order to understand your rights, receive helpful counsel and have someone fighting for the compensation you deserve, it may be wise to hire an experienced medical malpractice attorney first.
The medical malpractice lawyers at Rue & Ziffra, P.A., have experience working with many types of medical malpractice and hospital negligence cases and have gained the knowledge to help aid their clients throughout the legal and medical process. Whether the case involves an incorrect diagnosis or failure to carry out a doctor’s orders in a timely manner, the burden of medical negligence should never be borne by the patient and his or her family alone.
Rue & Ziffra, P.A. proudly serves areas throughout central Florida in Volusia County and Flagler County.
If you or a loved one has suffered a medical malpractice claim and would like legal counsel from a medical negligence attorney, contact Rue & Ziffra, P.A. for your free consultation and find out what benefits you may be entitled to.
