Medical Malpractice refers to an injury to a person caused by the negligence of a doctor, hospital, nurse or other health care practitioner.
In order to succeed in a medical malpractice case, the injured person must prove that the health care practitioner fell below the prevailing professional standard of care for that practitioner.
Over the years the Florida Legislature has passed laws that make it extremely difficult to pursue a medical malpractice action, and has established numerous requirements that must be strictly satisfied.
Initially, the injured person must retain an expert in the same or related specialty as the practitioner that committed the malpractice, for the purpose of reviewing all aspects of the case and arriving at an opinion.
If the retained experts opinion is that the actions of the practitioner fell below the prevailing professional standard of care, then the expert must put that opinion in writing.
At that point, the injured person must send out a Notice of Intent to pursue a medical malpractice action to the practitioner, and must include the written opinion of the retained expert that the practitioner fell below the prevailing professional standard of care.
Upon receipt of the Notice of Intent and the written opinion, the practitioner then has 90 days within which to conduct it’s own investigation into the allegations. During this 90-day period, both the injured person and the practitioner are allowed to engage in “discovery,” consisting of sending out questions to be answered, requests for documents that must be provided and to take unsworn
The results of this discovery are used solely for this 90-day investigative period and cannot be used for any other purpose.
If either the injured person or the practitioner do not cooperate during this investigative period and substantially comply with the discovery requests, there can be adverse consequences, including the dismissal of the malpractice action. Upon the conclusion of the 90-day period, the practitioner will either accept responsibility or deny responsibility.
If the practitioner accepts responsibility, the practitioner can then request that the injured person go through arbitration.
If the injured person accepts the arbitration request, then they do not have to prove that the practitioner committed medical malpractice but, in exchange, the compensation that they are able to obtain for their damages is capped by statutory limitations.
If the injured person does not agree to accept arbitration, they can file a lawsuit against the practitioner, but are subject to certain sanctions if they lose the case at trial.
If, upon the conclusion of the 90-day investigative period, the practitioner denies responsibility, then the injured person can file a lawsuit against the practitioner for medical malpractice.
At trial the injured person must present evidence that the actions of the practitioner fell below the prevailing professional standard of care and present evidence concerning the extent of damages suffered by the person as a direct and proximate result of that medical malpractice.
The evidence related to the substandard care of the practitioner must be presented through an expert witness who is familiar with the prevailing professional standard of care.
The evidence related to the damages suffered by the person is normally presented through treating physicians, friends and relatives of the injured person, various economic experts and by the injured person.
If the injured person proves that medical malpractice occurred, that person is able to obtain compensation for both economic damages and non economic damages.
There is no cap or limit on the amount of economic damages that can be obtained and these would include past medical bills, medical bills reasonably and necessarily expected to be incurred in the future, past lost income and the loss of the ability to earn money in the future.
On the other hand, there is a cap or limit on the amount of non economic damages that can be obtained in a medical malpractice case.
Non economic damages are damages related to pain, suffering, loss of enjoyment of life and other intangible damages related to the injury suffered and the effect those injuries have on a person’s life.
Regardless of the severity or extent of the injuries suffered by the person, a cap or limit is placed on the non economic damages that can be recovered, in some cases as low as $250,000, depending on the type of practitioner that committed medical malpractice.
If the injured person does not prove that medical malpractice occurred, then they lose their case, are not entitled to compensation and may be subject to certain economic sanctions.
Robert G. Corirossi has been representing the victims of medical malpractice since 1982.
For a free consultation with a Medical Malpractice Lawyer, you can contact Mr. Corirossi at (305)442-8850 X 221.