If you or a loved one experienced a bad outcome from a medical procedure or during medical care, you might wonder if there is a case for medical malpractice and how a medical malpractice case works.
A bad result does not, by itself, automatically mean that the doctor owes you damages. Even if the doctor made a mistake, she might not have to pay any damages. But if the medical professional committed malpractice, you might be eligible for compensation.
What Constitutes Medical Malpractice?
If the mistake did not cause measurable harm, the law applies the “no harm, no foul” rule. Emotional upset without physical harm usually falls under this heading.
An undesired outcome can happen without any medical negligence. The law does not hold doctors to the standard of perfection. Mistakes happen, and medical procedures come with risks. If you suffered a known risk but the doctor performed to the level of the standard of care, it is usually not malpractice.
If the doctor did not disclose the known risks of the procedure, medication, or treatment, you might have a claim for lack of informed consent. You cannot consent to something you did not know was a risk. Failure to obtain informed consent can be medical malpractice.
Duty of Care
A doctor only has a duty of care for the patients they treat. A person cannot, for example, sue the world’s most famous brain surgeon for failure to diagnose the person’s malignant brain tumor if the person was not a patient of that doctor. Your treating physician has a duty of care toward you.
Standard of Care
The standard of care in medicine is what a similar professional with similar training would have done in a similar situation. The key is to compare “apples to apples.”
Your general practice family physician will not have to perform at the level of a brain surgeon, for example. They will have to provide medical care at the same level of other general practice family physicians do, including knowing when to send a patient to a brain surgeon or another specialist.
Different Standard of Care in Medical Malpractice Cases
The law imposes a standard of care in medical malpractice cases that is different than the standard in other personal injury claims. In other personal injury accidents, such as a car accident, we do not have to be professional race car drivers to know if a person drove recklessly.
The Standard of Care in Medical Malpractice
In medicine, however, the average person on the street is unlikely to know if the doctor offered appropriate care under the circumstances. We do not know if the physician should have run diagnostic tests, prescribed medication, or performed a medical procedure.
Medical Negligence/Violation of the Standard of Care
If the physician takes an action (or fails to act) in a way that does not measure up to the standard of care, the doctor has committed medical negligence. If the mistake does not cause any harm, there is no case for medical malpractice.
For example, there are thousands of medication errors every day in America. Tragically, many of these result in the injury or death of the patient. These errors can be medical malpractice or wrongful death cases. The medication mistakes that do not, however, cause harm, are not malpractice.
Causation in a Medical Malpractice Case
The doctor’s mistake must have caused your injury. If you suffer harm from something unconnected to the doctor’s negligence, you do not have a claim against your doctor for medical malpractice. You might have a claim against the person who did cause the harm.
Example of Lack of Causation
Let’s say that a person tells his doctor he is experiencing abdominal pain, nausea, and has no appetite. The doctor does an abdominal ultrasound and sees several growths in the pancreas, which he misdiagnoses as non-cancerous cysts. He prescribes pain medication and a modified diet to help with the discomfort.
The patient goes to the emergency room a week later for abdominal pain and gets the correct diagnosis of inoperable, untreatable stage four pancreatic cancer. The cancer had not progressed significantly during the week since the misdiagnosis. Even though the doctor made a mistake, it did not change the outcome for the patient, and did not cause harm.
On the other hand, suppose a doctor is performing an ultrasound for a different reason and sees small pancreatic tumors while when they are operable, and the cancer is at the highly treatable stage one. The physician ignores the tumors. The patient finally receives a diagnosis six months later, when the cancer is too far gone to treat. In this situation, the doctor’s negligence caused harm.
Recoverable Damages in a Medical Malpractice Case
The damages in medical malpractice cases will be different in every case. We will seek compensation for your out-of-pocket (economic) costs like medical bills, lost wages, and long-term care.
We will also pursue your non-economic losses like pain and suffering (your physical pain, emotional distress, and inconvenience), loss of enjoyment of life, and possibly your spouse’s claim for loss of consortium.
Difference Between Practitioners and Non-Practitioners
Since the law in Florida treats practitioners and non-practitioners differently, it is essential to understand the difference between the two designations. The Florida medical malpractice statutes define a practitioner as someone licensed in Florida to work as a:
- Medical doctor (MD)
- Osteopathic doctor
- Naturopathic doctor
- Advanced practice registered nurses
- Many other medical-related professions and occupations
The medical malpractice statutes in Florida also include corporations, partnerships, and other business structures in the definition of practitioner. Practitioners can be liable for the actions of their employees and anyone for whom a practitioner is vicariously liable.
Note that the Florida statutes do not include other nurses or pharmacists in the definition of practitioner. Non-practitioners are people who do not meet the definition of practitioners.
Limits on Damages You Can Receive
Florida used to limit the amount of damages that could be recovered in a medical malpractice case.
The economic damages (such as medical expenses, lost wages, long-term care costs, and other financial losses) still do not have a limit. In 2003, the Florida legislature limited the non-economic damages (such as pain and suffering, loss of enjoyment of life, and loss of consortium) a victim of medical malpractice could win.
The Florida Supreme Court declared this damages limitation unconstitutional on medical malpractice death cases in 2014 and in medical malpractice cases in which the patient survived in 2017. Despite this fact, the law is still on the books.
How to Get Help for a Medical Malpractice Case
The lawyers at the Montero Law Center help victims of medical malpractice recover the damages they deserve. Call us today at 954-767-6500, to set up your free consultation. We do not charge legal feeMs until you win compensation.