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Medical Malpractice

OVERVIEW

‘Malpractice’ is defined as negligent conduct by a professional performed in the course and scope of his/her professional activities.  Professionals include doctors, lawyers, engineers, accountants, nurses and others who require special training, education or experience to engage in the professional activity under state law.  Professionals ordinarily are required under state law to have a license to practice their profession.

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A professional is expected to act with that degree of care that would ordinarily be expected of similar professionals in the community or in general. Medical malpractice occurs when medical care providers deviate from accepted standards of practice and, either through negligence or omission, cause injury to a patient. Victims of medical malpractice have rights and recourse.

WHO CAN BRING A MEDICAL MALPRACTICE CASE

An injured patient can bring an action to recover damages resulting from medical malpractice. Members of the patient’s family – spouse, children, or parents – may also have a claim for loss of services, support and companionship. In Florida, parents can only sue for malpractice if their children are 25 or under. When someone dies as a result of medical negligence, the patient’s family may sue under the Florida Wrongful Death Statute (F.S. 786, 17-21). But – again – parents may not sue over the death of an over-25 adult child. Nor can over-25 adult children sue over the death or injury of parents. The permitted plaintiffs (the persons bringing the suit) include the estate of the deceased person, the surviving spouse, children or parents.

STATUTES OF LIMITATIONS

The statute of limitations, or period in which a claim founded in malpractice must be brought, is often shorter than it would be for other types of personal injury or tort claims.  In Florida, a medical malpractice action must generally be brought within two years from the date of the incident or from the date when the incident was or should have been discovered. No malpractice action may be brought more than four years following the act of malpractice. These limitations apply to minors aged eight or older. For injuries to a child under the age of eight resulting from medical malpractice, under Florida law the child must file suit by his or her eighth birthday or within the standard limitations period outlined above, whichever time period is greater.

LIMITATIONS ON MEDICAL MALPRACTICE DAMAGES

Non-economic damages (pain and suffering, loss of ability to enjoy life, etc.) are limited to $500,000.00 per claimant in most cases, or $1 million in cases in which the plaintiff dies or is left in a persistent vegetative state. Total non-economic damages may not exceed $1 million. Punitive damages are limited to the lesser of three times compensatory damages or $500,000.00. Punitive damages are not capped if there is intent to harm. There is no cap on economic damages such as loss of ability to earn income, lost accumulations, medical expenses, etc.

INVESTIGATING A CLAIM

‘Conspiracy of Silence’

During the past 2 decades, patients have made charges that there is “conspiracy of silence” among physicians who fail to disclose and occasionally affirmatively cover up the negligent acts of their colleagues.  Many attorneys and patients who have had experience with medical malpractice confirm this “conspiracy”.  Some physicians feel, with some validity, that testifying or corroborating malpractice will raise their insurance premiums, expose them to potential future lawsuits and subject them to criticism and ostracism from the medical community at large.  Often it is a brave physician indeed who will render testimony against a colleague.

Medical Records

Under Florida law, a patient or his/her representative is entitled to receive copies of medical records upon written request to a physician or hospital.  Health care providers can charge a reasonable photocopying charge to provide these records. Ordinarily, the first step in investigating a medical malpractice claim is obtaining medical records for review.  The records should be reviewed by a qualified health care professional to determine whether or not the defendant conduct falls within the required standard of care.

Pre-suit

Ordinarily, before a lawsuit can be commenced, there must be compliance with an extensive “pre-suit” procedure during which statements may be taken, documents exchanged and each side can obtain a medical review.

A plaintiff must serve upon the defendant a notice of intent to initiate medical malpractice litigation, which includes a verified written medical expert opinion attesting that there are reasonable grounds to believe that each named defendant was negligent. If a defendant denies the existence of reasonable grounds for the plaintiff’s claim, that defendant must file a corroborating verified written medical expert opinion.

Trials

Malpractice claims are tried before juries in the same way as any other tort or accident claim.

‘Going Bare’

Because of the alleged ‘malpractice crisis’ which has raised premiums for malpractice insurance, some physicians have elected not to purchase malpractice insurance and often will so indicate with a sign in their waiting room.  Physicians may otherwise be competent, but have made an economic decision not to expend money towards insurance premiums.  It would seem that going bare, that is not purchasing medical malpractice insurance, is an irresponsible act, as even the best of physicians can occasionally act negligently and leave their patient without remedy.  Florida requires that physicians either obtain malpractice insurance or bond themselves in a certain amount as a condition of practice.  Failure to comply with these requirements may lead to license suspension or revocation.

Attorneys Fees and Costs

Hoffman, Larin and Agnetti, PA will accept malpractice cases on a contingency fee basis.  This means that the firm will only be compensated if a recovery is made.  The contingency fee is often referred to as the “poor man’s key to the court house”.  Malpractice cases, particularly medical malpractice cases, are very expensive to prosecute. Medical malpractice law is a highly technical field of law; malpractice lawsuits are aggressively defended by well-funded defense firms. Experts must be obtained, often from outside of the jurisdiction, to testify in the proceeding.  It would not be unusual for the costs in a malpractice case to reach $100,000.00 or more.  Generally, because the cases are difficult to win and expensive to prosecute, Hoffman, Larin and Agnetti, PA will only accept malpractice cases where damages are severe, catastrophic or result in wrongful death. We offer a free evaluation and consultation.

Hoffman, Larin and Agnetti, PA is committed to representing victims of medical malpractice. Our goal is to ensure you receive the compensation you need and deserve. With over 35 years of legal experience on our side, we know the value of honest and trustworthy representation. When you choose us to handle your medical malpractice case, you can trust that we will provide straight answers to your questions. We will always be here for you when you need us and customize our representation to meet your exact needs and goals. Contact our medical malpractice lawyers at one of our 4 convenient locations based in South Florida today to discuss your case.