Legal Advice: Medical Malpractice

Medical malpractice is defined as the failure of a healthcare provider to render care in a manner similar to like trained and educated healthcare providers and, further, that as a result of the healthcare provider's failure to meet that standard of care, the patient suffered damage. Medical doctors, osteopathic physicians, dentists, podiatrists, hospitals and their employees, nurses, technicians, and physical therapists all fall under the same statute in Florida. Each state has a different law dealing with medical negligence, thus it is important to engage an attorney who is familiar with the state laws in the jurisdiction where the negligence occurred.

This affidavit is forwarded to the potential defendant, along with a letter called a Notice of Intent to Sue. This letter begins the 90-day pre-suit screening period which is a period of time in which the potential defendant, through his insurance company or attorney, is given the opportunity to investigate the allegations raised in the affidavit and Notice of Intent to Sue. Unfortunately today, approximately 30 percent of all doctors are without malpractice insurance.

When a physician does not carry medical malpractice insurance, Florida law requires him to conspicuously post the fact that attempt to settle or ask for arbitration. The majority of cases are denied by potential defendants, although this is not in any manner indicative of future outcome. It seems to be just a routine action for many insurance carriers.

Assuming the claim is denied at the end of the pre-suit period, the injured party is then free to institute a lawsuit against the defendant or defendants named in the pre-suit notice. Malpractice cases are dependent on the experts retained on behalf of the plaintiff and defendants. Whether negligence is found by a jury at the end of a case is largely dependent on the believability of expert witnesses. As a result of the system and the monetary charges of expert physicians, malpractice cases must have good economic value in order to make it worthwhile to proceed with litigation.

It is important to remember that the statute of limitations on a malpractice suit is shorter than, for example, an automobile accident. The statue of limitations runs 2 years from the date you knew or should have known that you suffered an injury caused by medical negligence. The statute can be up to 4 years from the date of incident depending on the circumstance and even up to 7 years if there was fraud or intentional concealment of the negligence by the healthcare provider. Needless to say, the sooner a case is investigated, the better. Thus, it is wise to contact an attorney familiar with malpractice cases to evaluate the claim as early as possible. In a case involving a wrongful death, the statute of limitations is 2 years after the date of death. The malpractice statute is unique in that it can be extended for a period of 90 days provided the request for an extension is filed before the Statute has expired.

In a wrongful death case caused by medical negligence, the statute delineates who can make a claim for damages. If an elderly person dies without a surviving spouse or children who are minors at the time of the death, no one would be allowed to claim pain and suffering for the loss of that individual. Adult children over the age of 25 are precluded from making a claim for pain and suffering as a result of the loss of a parent. In an automobile accident, if an elderly person died, his or her children could make a claim for pain and suffering. The malpractice statute specifically prohibits such claims.

Malpractice claims are a sophisticated form of tort action and require an experienced attorney who actually takes a case to trial to obtain the best results. Traditionally, malpractice attorneys, along with those litigating products liability actions, are considered the upper echelon of trial attorneys handling personal injury litigation. The above article is by no means a definitive discussion of the complex field of medical malpractice litigation. If my office can assist you or a loved one in determining whether or not a cause of action for medical malpractice exists, please feel free to contact us.

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