The Karlin Law Center

INTRODUCTION

Medical malpractice can be generally defined as negligence on the part of a physician, hospital or other health care professional which causes physical or emotional damage to that health care professional’s patient. Although medical malpractice is limited to negligence which occurs in the course of medical or health care, the basic legal issues involved in medical malpractice are the same as the legal elements in common negligence.

ELEMENTS OF MEDICAL MALPRACTICE

The basic elements involved in medical malpractice, as in common negligence, are establishment of a standard of care, proving a breach of that standard of care, legal causation, and damages. Generally, standard of care is defined as how a reasonable, careful or prudent person would behave in similar circumstances. Breach of that standard of care occurs when someone deviates from that standard of care. Causation and damages are often intertwined and can be difficult to separate. A legal cause of action for negligence usually exists when it is determined that the breach of the standard of care proximately caused damages, usually physical or emotional in nature to the victim.

These same issues, standard of care, breach of the standard of care, causation and damage also apply in a case involving medical malpractice. However, the elements of a negligence cause of action are tailored to the medical or health care setting. Therefore, in determining whether medical malpractice exists, the questions become: 1) how would a reasonable, careful and prudent doctor, hospital or other health care provider behave in the same or similar circumstances; 2) did the doctor, hospital or other health care provider breach that standard of care in this specific situation; 3) was the unreasonable, careless or inappropriate behavior on the part of the doctor, hospital or other health care provider the proximate cause of 4) injury or damages to the patient or client?

ADDITIONAL REQUIREMENTS FOR MEDICAL MALPRACTICE

Although the elements or points that must be proven in order to have a valid medical malpractice action are generally the same as in a common negligence action, medical malpractice cases present many unique, complex and confusing issues. They are different from the average automobile accident, slip and fall on a wet floor, or other negligence case. Most states, in an effort to limit the number of medical malpractice lawsuits filed, have passed laws which attempt to limit medical malpractice lawsuits that are filed to only those situations involving clear legal and medical disputes. Florida law, for example, now requires that the plaintiff go through a ninety-day pre-suit period during which a reasonable investigation must be undertaken to determine that a reasonable basis for filing a lawsuit exists.

Under Florida law, the plaintiff or the attorney acting on behalf of the plaintiff must obtain a review of the case by a medical expert. Only when the plaintiff’s medical expert has determined that a reasonable basis for the expert’s belief that medical malpractice or negligence exists, can the attorney enter into Florida’s ninety-day pre-suit period. This is accomplished by having the expert sign an affidavit indicating it is that expert’s belief that there is a reasonable belief that medical malpractice occurred. That affidavit must then be sent via certified mail to any perspective defendant doctors, hospitals or other health care providers. During Florida’s ninety-day pre-suit period, both the plaintiff and the defendant must comply with the other side’s informal requests for documents such as medical records, tax returns and other documents, and must present themselves for the taking of an unsworn statement.

The intent of the law requiring a ninety-day pre-suit discovery period is to attempt to foster the settlement of medical malpractice claims before suit is filed and to limit the number of cases or lawsuits that are filed in the first place. Other states have instituted similar measures to limit the filing of medical malpractice lawsuits.

COSTS INVOLVED

Due to the changes in state laws such as Florida’s pre-suit requirements, the costs of medical malpractice cases have increased. In ordinary negligence cases, attorneys usually incur costs for filing of the suit, court reporter fees, witness fees, copies of medical records and other costs normally associated with legal matters. Medical malpractice cases involve all of the costs previously mentioned along with the costs of hiring medical experts to investigate and provide testimony in the case. For this reason, the cost of medical malpractice cases is usually not less than $20,000 to $25,000 and can often exceed $75,000 if the case is tried before a jury. Fortunately, medical malpractice attorneys will often fund the prosecution of cases they believe are valid.

Due to the necessity of hiring medical experts and the complex requirements of state laws on medical malpractice, it is usually advisable to contact an attorney experienced in the handling of medical malpractice cases to determine whether medical malpractice has occurred. Attorneys specializing in medical malpractice are usually more adept at making an initial determination as to whether the case is worthy of further investigation. They usually have a number of experienced experts who can determine not only whether the case is viable, but also how difficult the case will be to try before a jury.

STATUTE OF LIMITATIONS

In addition, the time in which you have to sue, or the statute of limitations, for most negligence claims is four years. However, for most medical malpractice claims the statute of limitations is only two years. Under certain circumstances, the medical malpractice statute of limitations can be as long as four years or even seven years or up until a child’s eighth birthday. This complex area of the law is just one example of why you should contact a lawyer if you think you have been injured by medical malpractice.

****The foregoing is not intended as an exhaustive review of medical malpractice law in Florida. This information is not to be regarded as legal opinion applicable to all circumstances. Each factual scenario is different and requires unique and individual advice. The information provided herein should not be relied upon and any person with inquiry or concern should consult an attorney.

FURTHER INFORMATION

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