Medical malpractice claims arise when a doctor harms a patient by failing to perform his or her medical duties competently. While the rules in medical malpractice cases vary state by state, some common elements exist. In order to make a malpractice claim, you must be able to prove a number of things with the help of a qualified, experienced, personal injury attorney.
What are the Basic Requirements for a Medical Malpractice Case?
First, the plaintiff must prove that a relationship existed between themself and the doctor. The plaintiff must show they hired the doctor and that the doctor agreed to treat them. Taking examples to the extreme, if the doctor starting seeing and treating someone, this is established. On the other extreme, it is unlikely that a doctor-patient relationship can be established for following advice overheard at a family reunion. Issues regarding the doctor-patient relationship most frequently arise in cases where a consulting physician did not treat the plaintiff directly.
Second, the plaintiff must prove that the doctor violated the duty of care owed to the patient through negligence. Being unhappy with the results of treatment does not necessarily mean the doctor was guilty of negligence or medical malpractice. You and your attorney must be able to prove that the medical professional was negligent in treatment or diagnosis by acting in a manner that a reasonable professional in the same circumstance would not have.
You must also show that the medical professional harmed you in a way that a competent doctor in the same circumstances would not have. The issue is not whether the doctor’s care was the best possible; instead the question is: “Was it reasonable, skillful, and careful?” Plaintiffs are required to present a medical expert to testify about the appropriate medical standard of care and whether the medical professional deviated from that standard.
Third, the plaintiff must prove that the doctor’s negligence caused his or her injury. Patients that see doctors are already sick or injured and it needs to be determined if the doctor actually caused the harm. A plaintiff must show that it is more likely than not that the negligence of the doctor caused the harm. For example, if the patient has lung cancer, it can be difficult to prove that a death was caused by a doctor’s negligence rather than the lung cancer. Prior illness and injury adds to the confusion in a medical malpractice case.
Fourth, the plaintiff must prove that the injury caused by the doctor led to specific damages. In other words, in addition to showing the doctor’s negligence, the plaintiff must also show that he or she suffered harm. That harm can include lost work and earning capacity, medical bills, physical pain and mental anguish.
What Are the Most Common Types of Medical Malpractice Claims?
There are a wide variety of medical malpractice claims. Doctors may fail to tell a patient about side effects of a prescription, like heart failure. Another example of medical malpractice could be a doctor leaving a foreign object inside a patient’s body during a surgery. However, most medical malpractice claims fall into a few categories.
Failure by a Medical Professional to Diagnose
If a medical professional would have made a different diagnosis or discovered a patient’s illness and this would have led to a better outcome, you may have a medical malpractice claim.
Failure by a Medical Professional to Warn Patients of Known Risks
Medical professionals provide patients with a warning of the known risks of a treatment or procedure. This is also known as the duty of informed consent. If a patient would not have gone through a procedure or treatment if they knew of the risks, and they are injured by the treatment or procedure, they may have a medical malpractice claim.
Improper Treatment by a Medical Professional
This can occur in two different ways. One way improper treatment occurs is when the doctor selects the appropriate treatment, but does not administer it properly. Another example is when a doctor treats the plaintiff in a way no competent medical professional would.
What are the Special Requirements in Medical Malpractice Cases?
Special state rules are important and need to be followed.
- Timing. Medical malpractice cases need to be brought in a timely manner. The time limit for bringing a lawsuit is called the statute of limitations. Your case can be dismissed if not filed within the statute of limitations. For this reason, consulting with an attorney as soon as possible may be critical to the success of your claim.
- Presuit Investigations. In the state of Florida, prospective defendants in medical malpractice claims are notified of the potential for a suit prior to lawyers filing a suit. Those subject to suit have 90 days to conduct a review to determine if they believe medical malpractice occurred. This investigation may be done by one or more of the following:
- An internal review by a claims adjuster qualified to perform such a review;
- A panel including an attorney with an understanding of medical malpractice claims, a qualified claims adjuster, and a health care provider who performs work similar to the professional who may be sued;
- A medical review committee; or
- Or another similar procedure.
An insurer may require the claimant to appear in front of a medical review committee or pretrial screening panel. The claimant can be required to submit to a physical examination in some cases. However, the claimant is only required to submit to one physical examination, regardless of the number of potential defendants.
At the completion of the review, each prospective defendant must either reject the claim, make an offer for settlement, or admit liability and offer to submit to arbitration on the issue of damages. Florida allows for “informal discovery” during this phase of the case. This means, among other things, the parties may rely upon unsworn statements for the purpose of the presuit investigation.
Contact Madalon Law
Medical malpractice claims can be extremely difficult to prove. It requires representation by an experienced and qualified attorney. If you believe you have been injured due to medical malpractice, or if you lost a loved one, and believe medical malpractice is to blame, contact the determined Florida medical malpractice attorneys at Madalon Law to discuss your unique situation.