Things To Consider When Filing A Medical Malpractice Lawsuit

by Jun 4, 2019Medical Malpractice

Things To Consider When Filing A Medical Malpractice Lawsuit

by Jun 4, 2019Medical Malpractice

Medical Malpractice Law Firm
Medical Malpractice Law Firm

Medical malpractice (also known as medical negligence) can occur when doctors, hospitals, as well as other healthcare professionals commit an act and/or omission which causes injury or death to a patient. The negligence may be a result of inaccuracies in diagnosis, treatment of the patient, post-treatment care, and/or management of a patient’s health care. However, not every mistake by a medical practitioner amounts to medical malpractice. It only occurs in cases where the healthcare professional fails to meet the medically accepted standard of care expected in the care and treatment of patients. Standard of care is the medical care that a reasonably prudent medical provider would have provided or would not have provided if faced with a similar situation. As a result, medical negligence has to be proven with the testimony of another medical provider.

Practices that May Lead to Medical Malpractice

1. Negligence

Negligence is said to occur in situations where a doctor or a healthcare professional offers sub-standard care to a patient. This means that the level or standard of care provided is not commensurate to what another prudent doctor would have offered if faced with similar circumstances.

Medical practitioners may engage in negligent behavior by wrongfully diagnosing an adverse condition and failing to give proper advice to a patient on the risks associated with a certain kind of treatment. It may also involve the commission of intolerable errors during surgery as well as other procedures. These practices may merit a medical malpractice claim against the concerned medical practitioner.

The medical malpractice laws do not require professionals to be perfect in the performance of their duties. Like all human beings, medical practitioners can make mistakes. However, if the error committed by the practitioner whose conduct falls below the required standard of care in the medical profession, the mistake may amount to medical malpractice.

2. Recklessness

Although rare in the medical profession, a medical practitioner’s actions and omissions that are reckless may be also be regarded as negligence. For instance, if a practitioner attends to a patient while intoxicated or under alcoholic influence, it may lead to that practitioner acting recklessly. The practice of administering potentially toxic levels of medication to patients can amount to recklessness and be considered in contravention to the standards of medical practices. Recklessness can also be considered as negligence because it entails measures that are well below the required standards of care, with the potential of causing severe injuries to the patients.

Practices that may not Amount to Medical Malpractices

Even though a patient is injured or suffers harm as a result of a practitioner’s actions, some actions may not be sufficient to prove medical malpractice against a doctor.

The following practices or actions may not amount to medical malpractice:

1. Worsening of a Patient’s Condition

A medical practitioner will usually not be liable for committing medical malpractice simply because of the condition of a patient worsens while undergoing treatment. In some instances, a doctor may be unable to treat or cure a certain kind of sickness even if the said condition is treatable. The doctor is not in a position to give any assurance that the patient will respond to the medication administered. So long as the practitioner acts with reasonable skill and care while treating the patient, he or she will usually not be liable in a medical malpractice lawsuit.

2. Untreatable Medical Condition

Not all medical conditions and health problems can be treated. A doctor must correctly diagnose a health condition. After diagnosis, the doctor will decide on how to carry on with the care of the patient. Therefore, the practitioner may not be liable under medical malpractice simply because the condition of the patient is terminal or untreatable. The role of a medical malpractice attorney is not to seek legal remedies for unfortunate and unavoidable outcomes such as incurable or terminal illnesses as well as deaths, it is to use the available laws to protect victims of negligence and non-adherence to acceptable medical standards of care.

Proving Medical Malpractices Claims

Medical malpractice claims are generally for patients who have suffered injury or harm as a result of negligent medical treatment or other actions.

Usually, the medical malpractice attorney needs to prove the following in a medical malpractice claim:

1. Who can make a Medical Malpractice claim?

In Florida, only an actual living patient or the survivor of a deceased patient is allowed to make a claim for medical malpractice providing that the malpractice was the cause of the injury or death. In Florida, only a spouse of the deceased patient and/or the children under the age of twenty-five (25) years of age of the deceased patient, will be considered a survivor for the purposes of pursuing a medical negligence claim.

2. There must be a Relationship between a Doctor and a Patient

The necessary foundation of this relationship is a duty of care. It must be proven that the doctor owed the patient a duty of care. The claimant must prove that there existed a doctor-patient relationship between himself or herself and the medical provider. This means that the patient sought the doctor’s services, and he or she accepted to offer said services, hence owing the patient a duty of care. If the doctor in question performed the diagnosis and treatment, then proving the doctor-patient relationship is rather simple. Doubts on the existence of a doctor-patient relationship often arise in cases where a consultative physician did not directly treat the patient.

3. Negligence of the Doctor

The mere fact that the patient is not impressed with his/her treatment or results does not render a doctor liable for the offense of medical malpractice. The patient must prove negligence on the part of the practitioner in connection with the diagnosis or treatment. This entails proving that the physician injured the patient in a manner that a qualified and competent doctor, faced with the same situation, would not have done.

A doctor is required to exercise reasonable care and skill to ensure the patient suffers no harm as a result of negligence. Whether the doctor used reasonable skill and care is often at the core of proving a medical malpractice claim. The patient is required to produce medical experts to help in discussing what the required standards of medical care entail. The expert will also demonstrate the divergence of the doctor from the usual standards of medical care.

4. Injury to the Patient

The patient has to directly link the causation of the injury to the doctor’s breach of the duty of care. Since many cases of medical malpractice involve patients that are already injured or sick, questions arise as to whether the actions of the doctor, negligent or non-negligent, actually led to the injury or harm of the patient. For instance, if the patient is suffering from an illness like cancer, and the doctor acted negligently, leading to the patient’s death, it could be challenging to determine the cause of death. The death could be as a result of cancer or as a result of the doctor’s negligence.

It is the responsibility of the patient to prove that the incompetence of the doctor was the probable cause of his/her injury. A medical expert will be required to give expert evidence to the effect that the doctor’s negligent actions caused the injuries. Injuries may range from infection, pain, perforated organs, and a host of other medical problems.

5. Florida’s pre-suit requirement

Prior to issuing notification of intent to initiate medical negligence litigation, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that the medical provider was negligent in the care or treatment of the claimant and such negligence resulted in injury to the claimant. Additionally, prior to the filing of any lawsuit against a medical provider, a claimant must provide a verified written medical expert opinion at the time of the notice of intent to initiate litigation, which shall corroborate reasonable grounds to support the claim of medical negligence.

6. The Injury Resulted in Specific Damages

The patient must prove that the negligence of the medical practitioner caused him or her damages and the damages are permanent. For instance, if a doctor makes a wrong diagnosis, the patient’s health may deteriorate, leading to overwhelming medical bills. Other damages may include mental anguish, lost work as well as the lost capacity to earn. However, if the patient makes a full recovery, then a malpractice claim will probably not be viable as the injury was only temporary. Even if negligence is proved, the patient must also prove damages for a claim of medical malpractice to succeed.

7. Sufficient Evidence

It is necessary for the patient to prove the case of medical malpractice to the required standards. The grievances of the patient can only be proven by sufficient evidence to sustain the claim. The claimant must look for a competent medical expert to testify and prove the existence of medical negligence. The expert will also be responsible for demonstrating the extent of the injuries suffered. This will be done by reviewing the patient’s medical records and certifying that the healthcare provider fell short of meeting the requisite medical standards.

Finding a qualified malpractice attorney who is able to obtain the proper medical expert who can decipher crucial evidence determines the success or failure of a medical malpractice claim. An experienced attorney will also discuss the weaknesses and strengths of the case and advise the correct course of action. The attorney will also have the necessary contacts to ensure the claim is filed on time and in a professional manner.

8. When to file a claim?

Florida has a two (2) year statute of limitations for filing a malpractice claim. Therefore, it is critical to consult with a seasoned medical malpractice attorney as soon as you believe you may have a claim for medical malpractice. There may be a different statute of limitations if the cause of action accrued in another state, so be sure that your medical malpractice attorney is familiar with the laws of the pertinent state.


Medical malpractice cases are highly complicated and challenging to prove. One may be armed with the medical reports and other forms of evidence, but still, there are complex questions that must be answered for one to be held liable for medical malpractice. It is therefore essential to seek the services of a medical expert and a malpractice attorney to assist in proving the complex claim.

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