South Florida Injury Lawyer Blog
While the vast majority of doctors and hospitals in Florida are capable and conscientious, there are, sadly, many cases of malpractice from incompetent or negligent practitioners. If you believe you have been the victim of malpractice, don’t wait to contact our office so we can help you build your case.
Florida law governing malpractice
In order to have a malpractice case, you must be able to demonstrate negligence. The “4Ds” must be proven in any personal injury case – duty, dereliction of duty, direct or proximate cause, and damage – but for medical cases, it applies as follows:
- Duty: The medical provider had the duty to provide care, which is to say that there is an established patient-doctor relationship, not just a casual remark from a medical professional you happen to know
- Dereliction of that duty: The physician or medical provider failed to follow standards of acceptable medical practice, such that another competent and prudent medical provider would follow
- Direct or proximate cause: The injury can be directly or closely connected to the medical negligence
- Damages: There is clear injury for which the patient can seek compensation
Medical malpractice may be due to something the medical provider did or did not do, but it can also be for misdiagnosis or negligent interpretation of tests. Again, as your attorney, I would have to demonstrate that there was negligence involved, not just a simple or understandable mistake. Florida law recognizes that we are all human and even the most conscientious doctor can miss something. In less cut-and-dried cases I look for incompetence, imprudent judgment, insufficient attention to detail, and a track record of misdiagnosis or carelessness.
Statute of Limitations and “Discovery”
According to Florida Statutes Sec. 95.11, the statute of limitations for bringing a malpractice lawsuit is two years from when you discover that your injury was caused by the incident. In addition to the Statute of Limitations, you are also bound by the Statute of Repose (SOR). The SOR says that typically a medical malpractice lawsuit must be brought within 4 years of the date of the negligence (regardless of when you discovered the negligence.) For instance, if you had surgery that left you immobilized due to surgeon incompetence, you would immediately be aware of your injury and would have two years from the date of the surgery to sue. However, not all surgical errors are immediately identified. In these cases, you have two years from the discovery of the malpractice, but you must also be within the 4-year SOR. For example, if you have lingering nerve pain following a surgery that you were told would eventually go away but is later determined to have been caused by an error made by the surgeon, your lawsuit must be filed within 2 years of the date the malpractice was discovered and within 4 years of the surgery itself. There are very few exceptions to this (including when the doctor has committed fraud or there is a child involved).
Do’s and Don’ts
Here are some things you should and shouldn’t do when you suspect malpractice:
- Do NOT put anything on social media or blogs or any other public space about your injuries or lawsuit. Anything you say or do can be used against you in the lawsuit.
- Obviously, you will probably talk to the providers about your injury in the beginning, but do NOT carry on a correspondence with them, especially via email or other permanent format. Again, it can be used in court.
- Do NOT throw away medical documents or permanently mark them up.
- Do NOT miss doctor appointments or do anything that might be construed to worsen your condition, thus providing an argument by the defendants that you were not hurt by the medical treatment but by your own actions
- Do NOT sign anything!
- DO keep detailed records of doctor appointments from before and after the incident. Collect all documentation from all your healthcare providers – it belongs to you so they are required to give it to you. Keep track of all correspondence you have had with any medical providers.
- If the injury can be demonstrated in pictures, DO collect before and after pictures. Also keep a detailed record of your symptoms over time.
- DO keep all receipts of medical expenses, evidence of lost income, and costs of modifications to your home, etc., to accommodate for your injury.
According to the American Society of Clinical Oncology, medical errors cause from 44,000 to 98,000 unnecessary deaths and in excess of 1,000,000 injuries every year. If you believe you have suffered an injury or a loved one has died due to malpractice, misdiagnosis, or delayed diagnosis, contact me today at (954) 448-7288 from anywhere in Florida to schedule a free consultation.