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Medical Malpractice


Gainesville Medical Malpractice Attorney

Florida Medical Malpractice FAQ

Medical malpractice lawsuits have been highly sensationalized by the media. This has led to many misconceptions about the nature of most medical malpractice cases.

As your Gainesville, FL medical malpractice attorneys, we want you to be fully informed so you can make good decisions about your specific case. This article is not intended to constitute legal advice, nor is it meant to create an attorney-client relationship between Alba and Yochim and the reader. For specific advice on your case, please call us to set an appointment.

How do I know if I have a medical malpractice case?

To answer this question, let’s talk about what medical malpractice actually is. While many people believe medical malpractice occurs any time medical treatment goes wrong, the truth is more complex. Medical malpractice is really more about medical negligence. It happens when a healthcare provider fails to deliver the standard of care that any other reasonably prudent health care provider might offer.

This gets sticky because the practice of medical care is more of an art than a science. For example, certain symptoms can often be associated with multiple conditions. A doctor may misdiagnose your condition, but do so in good faith and in a way that other healthcare providers may well have seen as perfectly reasonable given the circumstances. That is why malpractice isn’t really about whether your care or a loved one’s care produced a good outcome. Rather, it is about whether or not the provider was actually negligent.

If you were injured while receiving care in an ER matters get even more complicated. An ER doctor or nurse is only liable for medical malpractice if he or she commits “reckless disregard” for the patient’s safety. This is because the ER is a chaotic environment at the best of times, and the law accounts for that.

It’s hard for a patient to actually know for sure if they’ve been a victim of malpractice. However, some examples include prescription errors, surgical errors, prescribing fraudulent or unnecessary surgeries, substandard care or failure to provide necessary care. These actions must result in an injury, and the injury must be the direct result of the malpractice before you will have any kind of a case. A medical expert must testify that a reasonable level of care was not delivered, and we as attorneys must prove we thoroughly investigated the strength of the case in good faith before we even file the suit.

With that being said, you have nothing to lose by taking the time to consult with an attorney, which is the only way to determine whether you have a case or not. As attorneys we can advise you not only on the strength of your case but on whether or not it makes good financial sense to pursue your case, giving you the information you need to make clearer decisions.

Be prepared to visit more than one attorney. Agreeing to take on the case obligates the attorney to spend a great deal of time, effort, and money verifying that there is a viable case. Thus, some attorneys are leery of taking all but the most open and shut cases. If someone turns you down, get a second opinion. You’ve a right to it, and lawyers disagree. It’s the nature of practicing law.

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If you’ve talked with three lawyers and can’t find representation, however, you probably don’t have a strong enough case to proceed, and you’ll probably have to let it go. If you still believe your health provider was negligent you could, however, file a complaint with the Florida Board of Medicine. You may not get any money for doing this, but you may prevent a similar incident in the future.

By the way, it won’t cost you any money out-of-pocket. The reason why many attorneys are slow to take many medical malpractice cases is we take them on a contingency basis. This means we get paid a percentage of your winnings, and we only get paid if you win. If you lose, or if your winnings are very small, we may not be compensated for the long hours we put into researching and pursuing the case.

However, this also means you have nothing to lose by asking. If you lose, or if we don’t take your case at all, you don’t have to pay anything at all. We’re here to help you. We’re not here to make life worse during a time that is already difficult, scary, and expensive for you.

Here’s what you need to know about Florida’s medical malpractice Statute of Limitations.

In Florida, the statue is 2 years from the date the patient or the patient’s caretaker (i.e., a parent), knew an injury occurred and knew that the injury was a result of negligent or sub-standard medical care. Note we’re seeing “reasonable person” language again. This shows you that the patient and/or the patient’s caretaker is also seen as having some responsibility for the patient’s wellbeing. If it takes you six months to notice or respond to something a “reasonable person” should have noticed after a week, then you’ve really only got a year and a half left to file suit (and you’ve already weakened your case by demonstrating some negligence of your own).

You should also be aware that Florida law includes a “Statute of Repose” as well. This law protects medical providers from lawsuits after four years have passed from the date of the actual malpractice. This means you lose some time even if it would take a reasonable person 10 months to spot the injury. Providers only lose this protection in two cases. The first case is if the provider knowingly defrauded or misled you (and you can prove that). The second case is when you’re dealing with children…the Statute of Repose doesn’t apply if the child is less than eight years old, so long as the parents can show they exercised a reasonable standard of care.

In short, your window of opportunity is probably far smaller than you think it is. The clock is ticking. If you think something is wrong, act quickly. Contact a malpractice lawyer and go to a different medical provider to get the injury examined and cared for.

As a result, it’s a good idea to be extra-vigilant whenever you or a loved one undergo any major medical procedures or take any new prescription drugs so that you may respond to any potential injuries quickly. This isn’t just good for your case, of course. It’s also a matter of getting injuries treated before they get any worse!

Here’s what to expect after we agree to take your medical malpractice case.

Before we can even file a suit we must engage in a process of investigation. This process is called the “pre-suit proceedings.” We will ask you to:

  • Gather relevant medical records
  • Gather up bills and proof of expenses related to the case
  • Answer interview questions which will help us determine the facts of the case.

Once we’ve gathered up all of the facts and documentation we will pass them on to a highly qualified medical expert who must review everything and determine whether or not the defendant delivered a reasonable standard of care. This expert will also determine whether or not your injury was a direct cause of the medical care you received. Sometimes, we might consult with multiple experts just to be sure.

If the expert can’t determine that your injury was directly caused by the medical care that you received or believes your medical provider exercised a reasonable standard of care your case may end here.

If not, we will file suit and the case will proceed.

As we proceed, do what you can to keep your head in the game. Without a doubt, the biggest mistakes most clients make are mistakes of mindset. While it’s natural to be angry if you’ve been severely injured by a doctor you trusted, or if a loved one has died as a result of medical treatment, the purpose of a malpractice suit is not to get revenge. Most medical malpractice suits also will not make you rich.

Let’s examine the revenge mindset first. In Florida, juries rarely award “punitive damages” for malpractice cases. Medicine is hard. Most negligence occurs because doctors are tired, overloaded, distracted by other concerns, or even because they haven’t had a chance to catch a meal for hours on end. Malpractice is not a crime unless there was willful fraud or misrepresentation.

In addition, you probably won’t be “putting the doctor out of business” or “taking him for everything he’s worth.” You’ll be getting a payout from his insurance company, or the hospital’s insurance company. You might damage that doctor’s reputation or increase his premiums, but in many cases that doctor is going back to work tomorrow, and there’s not much you can do about that.

As for getting rich, that’s another media misconception. Most of the time, patients receive enough money to avoid bankruptcy by getting what they need to cover the expenses associated with the injury. Sometimes juries do award some money for “pain and suffering,” and if you’ve lost your ability to work in the future you may indeed receive enough money to cover your living expenses for life if you manage it properly. Depending on what you used to do, however, your monthly budget may in fact shrink considerably, even though popular television shows make it seem like people win cases like these and go on to “live large.”

Thus, it’s best, as much as possible, to keep your mind on the facts of the case and to treat this as a transaction between you, the medical facility or doctor, the malpractice insurance company, your attorney, and the courts. Getting emotional can cause you to reject attorney advice, or to say and do things which are not in your best interests.

Don’t sign anything before you talk to a medical malpractice attorney.

Often, people have taken actions to weaken their malpractice case long before they know they have one.

For example, your case will grow considerably weaker if you did not comply with your doctor’s orders. If you received a prescription and failed to take that prescription exactly as directed, for example, then you may bear partial or even full responsibility for any injuries that followed as a result of your treatment.

In this, medical malpractice is a little bit like an auto accident, in which the law accounts for shared responsibility. The judge may determine, for example, that you were at least 30% responsible for your own injury, and award you just 70% of the damages as a result. The defense can also use your own actions to try to muddy the chain of causality between your injury and the doctor’s care.

Settlement offers are part of most malpractice cases.

You may even receive a settlement offer before you consult an attorney.

Settlements aren’t necessarily a bad thing, especially if they’ll cover all or most of your expenses. But you should consult with an attorney before you accept any money. Once you settle, your case is over and it can almost never be reopened. You don’t want to pass up a good offer, but you don’t want to undervalue your case, either.

If you decide to pass up on settlement offers the case may proceed to trial, where it will be heard before a six-member jury of your peers. You may get more money if you go to trial, but you could also lose everything. This is another reason why it’s best to consult with an attorney before accepting any settlement offers or signing anything the insurance company sends to you.

Winning your medical malpractice case

Assuming the defense does not appeal the case, the malpractice insurance company will issue a check to our office. We’ll take our percentage. We will then disburse money to anyone who has a legitimate claim to a portion of the winnings.

For example, you’ll probably incur medical bills while seeking to treat your injury. Those medical professionals get paid first. If the patient died as a result of malpractice some of that money may need to go to the funeral home. When we’re done paying anyone who needs to be paid we will write you a check for the remainder. Obviously if you already paid all of your service providers out of your own pocket you’ll get to keep everything once our percentage is paid, and you’ll be able to use that money as you see fit.

If the defendant appeals, we’ll have to fight the case all over again. It’s important to be patient when pursuing a medical malpractice case. In general, these cases take 1-3 years to get fully resolved.

If you believe you have a medical malpractice case…

Remember, time is of the essence. Call Alba and Yochim for your free consultation today.