First, do no harm. It is an oath every doctor must take. But what happens if this duty is breached?
Patients who are harmed by doctors that disregard this oath are left to cope with any physical, mental and emotional wounds suffered while also having to deal with mounting medical bills. These patients have a right to sue to recover damages for harm. Our medical malpractice attorneys will help you determine whether you have a claim.
Medical malpractice occurs when a physician fails to properly treat a medical condition and causes a new or aggravated injury to the patient. Compensatory damages may be awarded for economic damages such as medical bills or loss of earning capacity due to disability. Noneconomic damages may be awarded for the emotional and psychological pain and suffering. Punitive damages may also be awarded if causation is proven.
When the injured party brings a claim, the insurer has a duty of good faith under state statutory law to act in the best interest of the insured, not its own self-interest in settling a claim. If the insurer fails to do this, then the insured may also have a claim for bad faith.
Dale Swope, our firm’s founding partner, co-authored “Bad Faith Claims” in the Florida Medical Malpractice Handbook, 2nd Edition, Florida Bar CLE Manual (2009) with attorneys Shea Moxon and Celene Humphries.
If you suspect that you, or a loved one, have been injured due to medical negligence, or that your insurer has unreasonably delayed settling your claim, our experienced tort attorneys can help you determine if you have a medical malpractice or insurance bad faith claim. Please contact us today.
“Medical mistakes kill enough people each week to fill four jumbo jets,” according to an article in the Wall Street Journal by Dr. Marty Makary, a surgeon at Johns Hopkins Hospital and developer of surgical check lists adopted by the World Health Organization.
Diagnostic errors including delayed, incorrect and missed diagnoses, account for more lawsuits than any other medical error, the Journal of Family Practice’s September 2010 issue reported.
Over a decade ago, a landmark report published by the Institute of Medicine, entitled “To Err is Human: Building a Safer Health System,” suggested that as many as 98,000 people die each year in the U.S. as a result of medical errors – making this type of accident the eighth leading cause of death. Among hospitalized Medicare patients from 2007-2009, a HealthGrades, Inc. report found 79,670 potentially preventable deaths.
The battle over damage caps is currently pending in Florida’s Supreme Court. The court has heard oral arguments on both sides in the case [Estate of Michelle Evette McCall, et al. v. United States of America SC11-1148], but has yet to hand down a decision. Ms. McCall died shortly after giving birth to a son in 2006 due to blood loss while under the care of medical personnel with the U.S. Air Force. Her parents and the father of her child sued for medical malpractice and the jury awarded $2 million for non-economic damages for pain and suffering, which the judge reduced to $1 million, citing the damage cap requirements under Florida law.
While most people would agree that people that are harmed by the negligence of their doctor deserve to be compensated, the cost of that compensation has become the subject of controversy.
There is a widespread misconception propagated by lobbyists who have sought to place caps on damages that lawsuits are driving up the cost of health care and driving physicians out of practice. But researchers at Harvard University announced the results of a study in May of 2006 which found that most negligence claims involving medical error and serious injury were meritorious. 80 percent involved injuries that caused significant or disability or death. Most claims where there was no error were not paid. If there was a payment, they were significantly lower on average. Non-payment of claims where there was error appeared to be the bigger problem. Furthermore, the Congressional Budget Office calculates that medical malpractice insurance premiums account for less than 2 percent of health care spending.
How to bring a legitimate Medical Malpractice Claim
It’s important that the injured party files a medical malpractice claim before the time period of the statute of limitations expires to avoid losing the opportunity to recover damages. Under Florida Statute § 95.11, this is usually two years from the time the incident giving rise to the action “is discovered or should have been discovered with the exercise of due diligence . . .” The action should usually be commenced no later than four years from the date of the incident, except in cases where it can be shown that intentional misrepresentation of fact prevented the discovery of any injury or in an action brought before a child’s eighth birthday.
Before a medical malpractice lawsuit can even be filed with the court, the plaintiff has to send a pre-suit notice to the doctor that he or she plans to bring a claim, which must be accompanied by an affidavit from an expert. The pre-suit stage is difficult because if the plaintiff doesn’t find an expert that can testify as to how the doctor breached the standard of care and why, the case will be dead in the water. However, if an expert is found and the pre-suit notice is served, both sides have 120 days of pre-suit discovery, which is a process by which a party requests information to discover more about the other party’s cases. By the end of this period, many cases are settled or dropped. If no settlement is reached, then the plaintiff needs to decide whether to file a case with the court. If the case is filed, it is up to a jury to determine if the doctor breached the standard of care and how much the injured party should be compensated.
If you would like to speak with one of our representatives about filing a claim, please contact us.