Medical malpractice is negligence committed by medical professionals. For negligence to constitute a viable cause of action there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach of the duty. The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, “but for” the alleged negligence, the harm or injury would have occurred.
When determining whether the conduct of a member of the general public is negligent, the conduct is judged against a standard of how a “reasonably prudent person” might act in the same or similar circumstance. Conversely, when determining whether a medical professional has been negligent, his or her practice or conduct is judged at a level of competency and professionalism consistent with the specialized training, experience, and care of a “reasonably prudent” physician in the same or similar circumstances. This constitutes the “standard of care” or professional “duty” that a physician owes to his or her patient. If the physician breaches the standard of care and his patient suffers accordingly, there is actionable medical malpractice.
When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that a medical professional’s years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.
Negligence by a medical professional can include an error in diagnosis, a failure of the doctor to diagnose a condition, error in treatment, or failure to manage an illness or disease properly. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against: the doctor, the hospital, or Local, state or federal agencies that operate hospital facilities.
Medical malpractice laws are designed to protect patients’ rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who will discuss your case with you, and help you determine your best options.
Due in part to the power and resources of the health care industry and its lobyists and their insurance companies, many states (including Florida) have passed legislation making it more difficult to bring and prevail in medical malpractice actions. In most states today, physicians and hospitals are protected by legal limits, called “caps,” on the amount of damages and attorneys’ fees that can be awarded in malpractice suits. Also, most states have a two-year time limit for filing malpractice actions, unless extraordinary circumstances affect the case.
One obstacle patients in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a “certificate of merit.” In order to file a certificate of merit, a patient will first have to find, hire and pay for an expert, usually another physician, to review the relevant medical records and certify that the patient’s health care provider deviated from accepted medical practices, which resulted in injury to the patient. The patient’s attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff’s action has merit. This cost is almost always paid by the patient’s attorney as part of the investigation cost.
In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation, especially in light of time limits for filing a medical malpractice lawsuit.