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Medical Malpractice

Medical Malpractice

While many people believe medical malpractice occurs when medical treatment goes wrong, the truth is more complex. Medical malpractice is more about medical negligence. It occurs when a healthcare provider fails to deliver the standard of care that any other reasonably prudent health care provider might offer. It is complicated because the practice of medical care is more of an art than a science. For example, specific symptoms can often be associated with multiple conditions. As a result, a doctor may misdiagnose a 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 the medical care produced a good outcome. Rather, it is about whether or not the provider was negligent.

Elements of a Malpractice Claim

Some examples of claims include prescription errors, surgical errors, prescribing fraudulent or unnecessary surgeries, substandard care, or failure to provide the necessary care. These actions must result in an injury. The injury must be the direct result of the malpractice for a person to have a case.

At Alba & Straile, we strive to keep our clients educated and informed about their options so they can make good decisions about their specific cases.  We investigate claims and advise our clients on the strength of their case and the potential outcomes. Even if a case is not strong enough to proceed, a person can file a complaint with the Florida Board of Medicine. It will not win compensation but may prevent a similar incident in the future.

What you need to know about Florida’s Medical Malpractice Statute of Limitations

In Florida, the statute is two years from the date the patient or the patient’s caretaker (i.e., a parent) is aware that an injury occurred from negligent or sub-standard medical care. It means that the patient or the patient’s caretaker is seen as having some responsibility for their wellbeing. If it takes longer than a “reasonable person” should have noticed the injury, they have less time to file suit and may have weakened the case.

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. Medical providers only lose this protection in two cases. The first case is if the provider knowingly defrauded or misled the patient. The second case is when dealing with children. The Statute of Repose doesn’t apply if the child is less than eight years old, as long as the parents can show they exercised a reasonable standard of care.

In short, if a patient thinks something is wrong, they need to act quickly.  It is necessary to be extra-vigilant when undergoing any major medical procedures or taking any new prescription drugs.

Assessing a Medical Malpractice Case

At Alba & Straile PLLC, we conduct a meticulous investigation of the facts, called “pre-suit proceedings.” In this phase, we need to obtain relevant medical records, bills, and proof of expenses related to the case. In addition, we interview the patient regarding the details of the allegations.

The facts and documentation are reviewed by a highly qualified medical expert who determines if the defendant delivered a reasonable standard of care. This expert will also determine whether or not the injury was a direct cause of the medical care received. Sometimes, our law firm might consult with multiple experts to be sure we should proceed with the case.

Compensation and Punitive Damages

During the process, we ask our clients to maintain the right mindset. Getting emotional can cause a client to reject attorney advice and say or do things that are not in their best interests.  It is natural to be angry if a trusted doctor has harmed you or a family member.  In Florida, juries rarely award “punitive damages” for malpractice cases. Most negligence occurs because doctors are tired, overloaded, or distracted by other concerns. Malpractice is not a crime unless there is willful fraud or misrepresentation.

The purpose of a lawsuit is to receive compensation for losses.  Most of the time, patients receive enough money to cover the expenses associated with the injury. However, sometimes juries do award some money for “pain and suffering.” In addition, those who have lost the ability for future earnings may receive compensation to cover their living expenses for life.

Compliance Issues can Affect the Outcome

Often, patients take action to weaken their malpractice case long before they know they have one. For example, a case will grow considerably weaker for a patient that has not complied with the doctor’s orders. For non-compliance with a doctor’s instructions, a patient may bear partial or even complete responsibility for any injuries that followed. In medical malpractice, the law accounts for shared responsibility. The judge may determine, for example, that a plaintiff is at least 30% responsible for an injury and award just 70% of the damages as a result. The defense can also use a plaintiff’s actions to muddy the causality chain between the injury and the doctor’s care.

Settlement Offers are part of most Malpractice Cases

A patient should not sign anything or accept compensation until they speak with a medical malpractice attorney.  Once settled, the case is over, and a patient can seldom reopen it. Without the counsel of an experienced attorney, a settlement amount from a provider or insurance carrier may undervalue the case. Once a proposed settlement is refused, the case may proceed to a jury trial.

Winning your Medical Malpractice Claim

Assuming the defense does not appeal the case, the malpractice insurance company will issue a check to our office. We will then disburse money to anyone who has a legitimate claim to a portion of the award and the client will receive the remainder. If the defendant appeals, we will fight the case all over again. It is essential to be patient when pursuing a medical malpractice case. In general, these cases take 1-3 years to get fully resolved.

Contact us if you believe you have a Medical Malpractice Case

The attorneys at Alba & Straile PLLC have more than three decades of combined experience in medical malpractice negotiations and litigation. We provide our clients with the sound legal representation necessary to effectively and efficiently address their medical malpractice needs. We represent clients throughout Florida. Contact Alba & Straile PLLC at (352) 371-9141 to schedule a consultation.