Medical Malpractice: Things to Know

Medical malpractice is the term given to negligence committed by a medical professional who, in the course of his or her professional work, negligently breaches a duty which causes injury and/or other harm to the patient (plaintiff). As our South Florida personal injury lawyers at Aronberg & Aronberg know, medical malpractice comes in many forms and there are some crucial things to keep in mind when faced with a potential medical malpractice claim. In this blog, we will share some of our knowledge on this topic with you.

Common examples of medical malpractice

Some of the most common cases involving medical malpractice arise from doctor error in the areas of misdiagnosis, medication errors, and surgical errors, each of which is discussed briefly below.

• Misdiagnosis occurs when a doctor diagnosis a problem incorrectly. For example, you present to your general physician complaining of certain types of discomfort and your doctor diagnosis the problem as Disease ABC. To treat ABC, he prescribes certain types of medication. A few months go by, and you don’t feel any better; in fact, you feel worse. Feeling that you weren’t properly treated by the first doctor, you go to a second doctor, who tells you that your symptoms are actually caused by Disease XYZ and that you don’t have, nor have you ever had, Disease ABC. Because of the failure of the first doctor, Disease XYZ got worse over the three months and has caused irreparable harm to your body. In this case, as our personal injury lawyers know, you would likely have a strong case against your first doctor for misdiagnosing you, assuming the hypothetical reasonable physician would have been able to properly diagnose the disease as XYZ just like the second doctor did (thereby demonstrating that your first doctor was acting unreasonably).

• Medication errors are fairly self-explanatory — they are the name given to a mistake by a doctor made in the course of prescribing medication. These types of errors can appear in many ways, but we will give you one example here. Assume, for instance, that your doctor has decided to prescribe you medication to treat a sickness. Instead of prescribing you 100 MG per day of Medicine ABC, they send to your pharmacy a prescription of 1000 MG per day of Medicine ABC. That’s right—as our lawyers at Aronberg & Aronberg know, one extra “0,” added innocently by a perhaps overworked doctor, could mean the difference between life and death. Taking ten times the amount of medication you should really be taking can be fatal. If your doctor made an error in prescribing medication, and you were harmed as a result of it, you could have a strong case against your doctor for medical malpractice in the form of medication error.

• Surgical errors, like medication errors above, are more or less straightforward, at least in terms of definition. “Surgical error” is the name given to the miscalculation made by a doctor during surgery. For instance, an example of a surgical error which could give rise to a medical malpractice claim is the following: your doctor, in operating on your knee, accidentally leaves behind a surgical needle inside the knee when he closes it up after surgery. In this case, you would have a good case of medical malpractice against your doctor for the injuries resulting. (As our personal injury lawyers know, Florida State Statute § 766.102(3)(b) states that “the discovery of the presence of a foreign body, such as a … surgical needle … shall be prima facie evidence of negligence on the part of the health care provider.”

Timing can be everything

Medical malpractice claims, like all other civil tort claims, are subject to a Statute of Limitation—that is, you only have a certain amount of time to bring the claim. In Florida, the relevant statute for this sort of information is § 95.11(4). The statute holds that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action or within 2 years from the time the incident is discovered or should have been discovered with the exercise of due diligence. However, the statute provides, in no event shall the action be commenced later than 2 years from the time of the incident or occurrence from which the claim arises. (There are some exceptions for situations in which the injured plaintiff was, at the time of the accident, a child). This is a bit technical, and we will run through some examples for you below, but the key thing to remember is that the statute gives plaintiff time to discover the injury—the timeline doesn’t start running at the moment of the incident because you might not even know anything is wrong at first. That said, as our personal injury lawyers know, if you don’t exercise due diligence and be cautions and aware, you might give up your right to bring a claim. See below for some examples (assuming the injured individual was an adult at time of incident):

• Medical malpractice incident on January 1, 2010. Injury first reasonably discoverable, and discovered, on January 1, 2012. Claim brought on September 1, 2013. Allowed.
• Medical malpractice incident on January 1, 2010. Injury first reasonably discoverable, and discovered, on November 1, 2012. Claim brought December 22, 2013. Allowed.
• Medical malpractice incident on January 1, 2010. Injury first reasonably discoverable, and discovered, on January 1, 2012. Claim brought January 2, 2012. NOT allowed; more than 2 years since the actual incident.
• Medical malpractice incident on January 1, 2010. Injury first reasonably discoverable on January 5, 2010. Actually discovered by plaintiff on March 1, 2011. Claim brought on February 6, 2012. NOT allowed; claim cannot be brought more than 2 years after it should have reasonably been discovered.

In addition to the aforementioned exception for cases when the injured victim was a child, there is also an exception for circumstances in which fraud was employed to conceal the injury; in those cases, the timeline is extended by 2 years, but even then, a claim cannot be brought more than 7 years after the incident giving rise to the claim.

Our personal injury lawyers at Aronberg & Aronberg know that this area of the law can be incredibly technical, and that’s why we are here. If you or someone you know has been injured due to the wrongdoing or negligence of another, including a medical professional, please contact our offices to schedule a free consultation. You can reach us by calling 561-266-9191 or by emailing us at daronberg@aronberglaw.com. We look forward to assisting you!