Medical Malpractice–What you need to know before you pursue a case

Medical malpractice is a phrase fraught with controversy.  Politicians love to invoke “medical malpractice reform” as a key platform to reducing our insurance rates and improving health care in this country.  They have done an incredible job at convincing the public that medical malpractice cases are bad for society and that doctors deserve a special level of immunity when performing their jobs that no other profession is afforded.  The end result is an American society that is tricked into believing they are doing the “right thing” when they go to the polls and vote in favor of medical malpractice reform.  They blame us lawyers for making it expensive to get health insurance and the only perceivable way to remedy this problem is to allow doctors to operate (pardon the pun) with impunity .  In the end, the doctors and hospitals are given a green light to make medical errors with no realistic concern that they will be held accountable for their actions.  And the people that are harmed are left with little, if any, recourse.  The ironic, and disturbing, facts is that the people that vote for medical malpractice reform often regret that vote when they realize the harmful effect it has on their own case, when a doctor makes a medical error that harms them or a family member.


When hiring a medical malpractice attorney, the attorney must understand the pitfalls and issues that the case faces in order to properly strategize.  The laws in this area are intricate, complicated and strict; requiring a lawyer that can navigate successfully through the shark filled waters.


Here are some examples of the issues which face medical malpractice cases that are unique to ONLY medical malpractice cases:


1.  Medical malpractice cases cannot be filed until the lawyer has complied with Fla. Stat. sec. 766 and has properly investigated the claim.  This requires that the lawyer gather all medical records relevant to the case, have those records sent to an expert to analyze, and procure an expert affidavit from the expert confirming that reasonable grounds exist to initiate a medical malpractice case against the doctor or hospital.


2.  The expert hired by the lawyer has to be in the “same or similar specialty” as the doctor/health care provider that is being sued.  In other words, if you are suing an orthopedic surgeon, than your expert has to be an orthopedic surgeon.  If you are suing an emergency room physician, your expert has to be an emergency room physician.  If you have an expert that is not in the “same or similar specialty”, your case can be dismissed for failing to comply with the legal requirements.  There are exceptions which your medical malpractice lawyer should be aware of.  For instance, a doctor that practices in a hospital setting can usually testify against a nurse.  Similarly, a neurosurgeon that performs spinal surgery can usually testify against an orthopedic surgeon that performs similar surgery.  It is imperative that the lawyer handling these cases understand these specific requirements before starting the case.


3.  After hiring the expert and procuring a favorable affidavit, the lawyer for the injured person needs to send a “Notice of Intent to Initiate Medical Malpractice Litigation” to the defendant doctor/hospital.  This Notice of Intent must be sent by Certified Mail and must contain a copy of the affidavit by your expert.  The return-receipt green card which is returned to your lawyer by the U.S. Post Office is critical evidence that must be maintained to later prove that you have complied with this section of the statute.  Without the green card proving that the Notice of Intent was received by the doctor/hospital, the defendant can file a motion to have your case dismissed for failing to comply with the statute.


4.  Once the Notice of Intent has been received by the doctor/hospital, there is a 90-day investigatory period where the doctor/hospital and their insurance company has the right to perform their own investigation into the case.  This is called Presuit. During this 90-day period, a lawsuit cannot be filed.  Instead, the doctor or hospital’s lawyer can request information from you, including medical records, tax returns and employment records that will allow them to analyze the merits of your case.  At the conclusion of this 90-day period of time, the defendant can either (a) admit liability and pay your damages, (b) deny liability and provide an affidavit from their expert that states there are no reasonable grounds for a malpractice case, or (c) request that you enter into non-binding arbitration.  9 times out of 10, the defendant denies liability.  You are then free to sue.


5.  What happens if the defendant requests non-binding arbitration?  At this point, the defendant agrees to admit they are at fault for the injury. The only question at arbitration is your damages.  The key point to remember is that when a defendant requests arbitration, you can reject that request. However, if you reject that request, your non-economic damages (otherwise known as pain and suffering) is limited at trial to $350,000.  In other words, there is a penalty to rejecting arbitration.  If you accept arbitration, the pain and suffering damages is limited to $250,000 per claimant, plus a 15% additional charge to the defendants for attorney’s fees.  In either scenario, your economic damages (meaning your medical bills, loss of pay, future care, etc.) are all preserved.  But you are severely limited on pain and suffering.


6.  What happens if the defendant rejects the claim and a lawsuit is filed?  Once you can file suit, everything proceeds like a regular lawsuit.  However, these cases take far longer and cost far more money than they average personal injury lawsuit.  And the defendants are more stubborn than the average defendants.  This makes for a case that can be lengthy, emotionally draining, and very expensive.


The bottom line is that medical malpractice is a very specialized field of practice that requires a medical malpractice attorney that is experienced in the intricacies of these laws.  The most minor misstep can cause the entire case to be dismissed or lost at trial.

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