Medical Malpractice Frequently Asked Questions
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Medical Malpractice

Q: What is medical malpractice?

A: Medical malpractice, otherwise known as medical negligence, occurs when a medical care provider including a physician, chiropractor, hospital, nurse, or other healthcare provider, does something or fails to do something which is considered the accepted standard of care relative to diagnosing and treating a particular medical condition. To pursue a claim for medical malpractice, there must be a physician-patient relationship, and a breach of the standard of care which caused damages.

Q: Who can be liable for medical malpractice?

A: Any healthcare provider can be sued for medical malpractice depending on the circumstances. This includes physicians such as primary care providers or specialists such as cardiologists, pulmonary medicine physicians, infectious disease specialists, gastroenterologists, etc. In many instances, medical negligence occurs in the course of care provided during a hospital stay. Hospital-based physicians such as emergency department physicians, anesthesiologists, critical care physicians or radiologists, may be involved in providing negligent care. A claim for medical negligence can be pursued against these physicians as well as the hospital where they work. This is also true of the hospital nursing staff and other healthcare providers working in the hospital.

Q: What are examples of medical malpractice?

A: Medical malpractice typically takes the form of a failure to timely diagnose a medical problem and then treat that medical problem. Medical negligence can also be in the form of a misdiagnosis or a surgical error. Medical malpractice can lead to injuries to a pregnant mother during the pregnancy or to the child at the time of birth. A failure to timely diagnose and treat often occurs in the setting of the emergency department at a hospital. Medication errors also occur in the hospital setting as do surgical or anesthesia errors.

Q: If I signed a Consent Form prior to receiving treatment and suffered complications, do I still have a claim for medical malpractice?

A: There are many potential complications which can occur from medical treatment, particularly surgical procedures. Many of these complications can occur even if there is no negligence by the healthcare provider. However, even though there may be known potential complications of a procedure, these complications can also happen as the result of negligence by the healthcare provider and, if that is the case, a claim can be pursued.

Q: If I suffered a complication from my medical care, do I have a claim for medical malpractice?

A: The short answer is that you may or may not have a claim. Bad outcomes can occur without even with the best care. However, many times complications or bad outcomes are avoidable if the healthcare providers meet the standard of care. Whether there is a claim for medical malpractice will depend on whether the healthcare provider fell below the applicable standard of care.

Q: What do I need to prove to win a medical malpractice case?

A: To prevail in a claim for medical malpractice, there must be a physician-patient relationship between you and the healthcare provider at issue. It is the Plaintiff’s burden to prove by the greater weight of the evidence that the healthcare provider breached the applicable standard of care and that the breach was the cause of an injury causing damages. Damages include past and future medical expenses, past lost wages or future lost earning capacity, and pain and suffering type damages.

Q: How long does it take to pursue a case for medical malpractice?

A: Most medical malpractice claims settle before trial. However, it routinely takes anywhere from 1 to 3 years for a medical malpractice case to be litigated to the point where it is either settled or taken to trial.

Q: What damages can be recovered in a medical malpractice case?

A: Typically, both economic and non-economic damages can be recovered. “Economic” damages include past and future medical bills, cost of durable medical equipment, cost of home healthcare, lost wages, and lost future earning capacity. “Non-economic” damages are otherwise known as pain and suffering damages. These include pain and suffering, loss of enjoyment of life, and emotional duress. The spouse of a person injured by medical malpractice can also make a claim for loss of consortium which is the companionship and fellowship of a spouse as well as affection, solace, comfort and society.

In rare instances, if it can be shown that the medical malpractice was particularly egregious or that the healthcare provider acted intentionally or recklessly, punitive damages may be awarded to punish the healthcare provider for their gross negligence.

Q: What is the statute of limitations for a medical malpractice lawsuit?

A: Generally, a claim for medical malpractice must be brought within two years from the date of the incident giving rise to the claim, or within two years of the time that the claim for negligence was discovered or, with the exercise of due diligence, should have been discovered. Typically, the question of when the statue of limitations began to run on a claim for medical negligence will be an issue to be resolved by a jury.

Q: What is the statute of repose for a medical malpractice lawsuit?

A: While the statute of limitations provides that a claim should be brought within two years of the date of the incident or within two years of the date that the negligence was discovered or should have been discovered, the statute of repose provides that the claim should be brought within four years of the date of the incident regardless of when the claim was discovered. There are, however, exceptions where there is a fraudulent concealment of the negligence or in claims involving a child.

Q: Are there limits on the amount that can be recovered in a medical malpractice lawsuit?

A: There currently is no limit on the amount of damages that can be recovered in a medical malpractice lawsuit. However, the damages must be proven by a preponderance of the evidence. Once exception is where the healthcare provider requests binding arbitration at the end of the presuit investigation. If the healthcare provider requests binding arbitration, the non-economic damages for pain and suffering can be limited to $250,000 per claimant. While there is no limit on the amount of economic damages for medical bills or lost earnings, there are certain limitations which may come into play if the healthcare provider requests binding arbitration.

Q: What do I have to do to pursue a claim for medical malpractice?

A: In Florida, before a lawsuit can be filed for medical malpractice, the Plaintiff must have the medical records reviewed by an appropriate medical expert to determine whether there is a basis for a claim of medical negligence. If an expert reviews the records and believes there is a basis for a claim, and then signs an affidavit attesting to that fact, a notice of intent to initiate litigation is then sent to the healthcare provider advising of the Plaintiff’s intent to bring a claim. This triggers a 90-day investigation. At the end of the 90-day investigation, the healthcare provider can either deny the claim by providing an affidavit of their own expert, or they can request binding arbitration or make a settlement offer. If the claim is denied, Plaintiff then will file a lawsuit and initiate litigation.

Q: Do I have to pay an attorney fee up front to pursue a claim?

A: We only are paid if there is a recovery at the end of the case through a settlement or a judgment. This is called a contingency fee. The fee is contingent on winning the case. Bonner Law will advance all costs which are needed to pursue the case and, if there is no recovery at the end of the case, the client will not have any responsibility for these costs or any fees. If there is a recovery at the end of the case, then the costs will be reimbursed in addition to the attorney’s fees which are based on a percentage of the recovery. Pursuant to the Florida Bar Guidelines, the typical contingency fee starts at 33 1/3%. There is then a sliding scale depending on the amount that is recovered.

Q: What is a contingency fee?

A: Essentially, if there is no recovery, there is no fee. The attorney fee is contingent upon there being a recovery. If there is a recovery, then attorney’s fees based on a percentage of the recovery are paid when the monies from the settlement or judgment are distributed. Further, all costs which are incurred in pursuing the claim will be advanced by Bonner Law. If there is no recovery at the end of the case, Bonner Law will write off those costs. The client has no responsibility for those costs in the event there is nothing recovered. However, if there is a recovery at the end of the case, the costs will be reimbursed from whatever recovery is obtained in addition to the contingent attorney fee.