Medical Malpractice In A Nutshell

Medical malpractice is a form of negligence where an injury results from the failure of a medical professional or medical facility to exercise adequate care, skill or diligence in performing a duty.

The determination of whether a duty of care is met depends upon the standard of care for that professional medical practice. In other words, the applicable duty arises from the accepted practices of other professionals or facilities in the same field and geographical area. In the case of a doctor who is a medical specialist, the standard of care is determined by the standard of good medical practice in that specialty within the community.

It is important to remember that the duty of a medical professional is not the duty to cure, or even to guarantee a good outcome from treatment. Medical malpractice does not occur every time medical treatment is not successful. Rather, the duty is to provide good medical care according to accepted standards and practices in the community, or, in the case of a specialist, accepted standards in that medical specialty. Medicine is not an exact science, and doctors are not required to be right every time they make a diagnosis. A misdiagnosis can be arrived at even when all proper tests are performed accurately or evaluated by a skilled doctor with the utmost care. A misdiagnosis becomes malpractice, however, if the doctor fails to get a medical history, order the appropriate tests, or recognize observable symptoms of the illness. Then the health care provider failed to exercise adequate care, skill or diligence in performing his/her duty to the patient.

In Florida, in order to prove that you were injured due to the failure of a health care provider you must show: (1) The health care provider failed to exercise a duty of adequate care and (2) the failure to exercise diligence was the proximate cause of the injury.

The concept of medical malpractice negligence is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. The most common medical malpractice cases are for:

• improper diagnosis
• failure to diagnose
• medication errors
• surgical errors such as a slip of the knife severing a nerve during an operation
• medical instruments, sponges, needles or other foreign objects dropped inside a patient and left there after surgery
• errors in prenatal diagnostic testing
• failure to advise of diagnosis
• lack of informed consent
• abandonment (failure to attend to a patient)
• improperly prescribing a drug
• failing to inform the patient of available treatments
• continuing a treatment that has been shown to be ineffective
• below standard treatment or incorrectly performed treatment

A doctor has a duty to you to use care and diligence to diagnose your illness so that the proper treatment can be recommended. In order to properly diagnose a condition, a doctor should ask about a patient's medical history as well as his or her family's medical history. The doctor also should ask for a detailed description of current symptoms and should perform a thorough examination which includes necessary diagnostic tests.

Doctors also have a duty to disclose information pertaining to the treatment you will receive. If your condition is such that it is beyond the scope of practice of the examining doctor, or beyond the doctor's expertise, he/she must refer you to a specialist. If your doctor fails to follow these basic principles, and injury is caused as a result, you may have a case for a malpractice claim. Medical malpractice can occur at any point in the diagnosis and treatment course. For example, the wrong chart could be placed at your hospital bedside, resulting in you being given medication that you are allergic to that causes serious harm or even death.

One of the most common types of medical malpractice cases is misdiagnosis or delayed diagnosis of cancer. This is particularly true of breast cancer, which may represent the largest segment of medical malpractice lawsuits in the U.S. One reason for this is the fact that breast cancer is so common relative to other forms of cancer. Breast cancer is the most common type of cancer among women in the U.S. and the leading cause of death for women ages 40 to 55. Despite this, many women who develop breast cancer and could be treated are denied the opportunity when physicians negligently fail to diagnose their condition until it is too late. The result of this negligence is often the loss of treatment options or the chance of survival. The following are examples of some of the more common acts of negligence by physicians in failing to timely diagnose or treat breast cancer:

• Failing to order a mammogram, misinterpreting a mammogram, or otherwise failing to react to mammogram findings
• Relying upon mammography in place of a physical breast examination
• Failing to perform a breast examination which would have identified an obvious tumor
• Failing to identify a palpable lump during a breast examination
• Diagnosing a breast infection instead of a cancerous tumor
• Diagnosing a tumor as benign and failing to perform a biopsy
• Disregarding a history of sharp pain in the breast, or signs of retraction
• Failing to determine the cause of nipple discharge
• Relying upon negative aspiration biopsy
• Failing to order additional radiological tests, a biopsy, or ultrasound when appropriate
• Failing to communicate with the patient

When a diagnosis of cancer is made, the physician examines the affected tissue and identifies the type of cancer by the microscopic appearance of the cells. The doctor then classifies the cancer according to how advanced it is - otherwise known as staging. Cancer treatments vary widely depending upon the type of cancer and its stage. The probability that breast cancer will recur in a patient is directly related to the stage of the malignancy. If breast cancer is detected and addressed before the cancer has spread to any lymph nodes, the chances of survival are significantly better than otherwise. As such, any undue delay in diagnosing or treating breast cancer can have devastating consequences.

A medical professional may have been negligent in providing care to a patient, but sometimes that negligence is not the cause of the injury suffered by a patient. Because the law requires a connection between fault and injury, not all instances of medical malpractice allow for an award of damages. Determining causation in medical malpractice cases often is very complicated and usually requires the assistance of expert witnesses.

Expert witnesses are necessary in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. In addition, expert testimony is used to establish that the malpractice caused the patient's injuries. Due to the many health care providers involved with a patient, who caused the injury may not be clear. Determining which provider may have been negligent, and how the negligence caused injury, can be extremely complex. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.

There are several types of damages that may be available in a negligence medical malpractice case: compensatory damages (common), punitive damages (rare), wrongful touching damages and failed promise damages.

Compensatory damages are out-of-pocket expenses incurred, or financial losses sustained. They typically include:

• Medical and hospitalization bills incurred to treat your injuries
• Wages lost due to work missed while you recuperate
• Costs of household or nursing help during recovery, including costs of wheelchair or crutches required
• As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can't be precisely documented in dollars spent, including
• Pain and suffering endured due to injuries and any subsequent mental anguish
• Disfigurement resulting from injuries
• Value of medical expenses you are likely to incur in the future
• Value of wages you are likely to lose in the future
• Permanency of injury and resulting pain and suffering
• Loss of consortium (benefits of a relationship)
• Loss of opportunity

Punitive damages (rare) are punishing damages to prevent a knowing wrongful act from again occurring. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence - behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.

Damages are also available where the patient was not provided with proper informed consent. The damages in such cases are different then in a typical negligence medical malpractice claim. When the doctor treats a patient without their consent, the doctor may be liable for the wrongful touching (battery) of the patient, regardless of whether the treatment was successful.

In more unusual cases, a patient may succeed in proving that a doctor promised a particular result from a medical treatment or procedure and failed to obtain the promised result. In these types of cases, it may be possible to recover damages from the doctor for the loss of the value of the successful treatment.

There is presently a two (2) year statute of limitations regarding medical malpractice claims. If you fail to file a claim within two (2) years of a negligent act causing injury you should expect the health care provider to move to dismiss the claim for not filing the claim within the statutory required time.

This outline gives a brief summary of medical malpractice law in Florida. There are many factors that would affect the timing and approach to medical malpractice proceedings. There are alternative ways to resolve medical malpractice claims, ranging from an inexpensive consultation, to mediation, to litigation. For specific information directed to your situation please contact this office at your convenience.