Q What is Malpractice?A According to Florida law, “medical malpractice (also called “medical negligence”) is a breach of the standard of care applicable to a given health care provider (such as, a doctor, dentist, nurse, or hospital). Florida Statutes, Section 766.102, defines that standard of care as the level of care, skill, and treatment that, under the circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. For example, the standard of care for a general surgeon requires the surgeon to provide a particular patient with the same level of care, skill, and treatment that most general surgeons consider acceptable and appropriate for a similar patient under similar conditions. As you might expect, proving that a medical specialist (such as a general surgeon) committed medical malpractice requires the testimony of a similar specialist (in this case, another general surgeon). This legal requirement that malpractice be proven by testimony from medical specialists (who may charge $500 to $1,000 per hour for their services in reviewing medical records and giving testimony) is what causes medical malpractice litigation to be the most expensive type of personal injury litigation.
Q What does it cost an injured patient to bring a medical malpractice case? A H. Dennis Rogers, P.A., a medical malpractice law firm in Clearwater, funds all of the tremendous costs of our clients’ medical malpractice cases and receives no costs or fees unless and until we win judgments or settlements for our clients. No matter how much we have to spend on a case, we never accept costs or fees until our client is paid a recovery. Only after our clients are paid their recoveries do we accept a reimbursement of our costs. At that time, our itemized litigation costs are paid from the recovery, and an agreed percentage of the recovery is paid as our fee. We adopted our fee schedule, which is contained in our written contract with our client, from the fee schedule approved and published by The Florida Bar. If a case does not result in a recovery, our client owes us nothing.
Q What types of errors result in medical malpractice cases? A In our cases in Pinellas, Hillsborough, Pasco, Hernando, Citrus, Polk, and Manatee Counties, the patient has usually suffered injury or death as a result of one or more of the following careless errors by the patient’s health care provider(s):
- Delayed or improper diagnosis and treatment as a result of failure to obtain adequate information from the patient or the patient’s family;
- Delayed or improper diagnosis and treatment as a result of failure to perform an adequate physical examination of the patient;
- Delayed or improper diagnosis and treatment as a result of failure to obtain adequate diagnostic testing of the patient, including laboratory tests and radiographic studies;
- Delayed or improper diagnosis and treatment as a result of failure to refer the patient to a proper medical specialist;
- Careless prescription of the wrong medication or treatment;
- Careless errors during surgical and other procedures; and
- Careless or inadequate follow-up evaluations of the patient after surgical and other procedures.
If you believe that you have suffered a severe injury (or that a family member has suffered a severe injury or death) as a result of a careless error by a health care provider, please contact H. Dennis Rogers, P.A., a Clearwater medical malpractice law firm, for a free consultation.
Q What types and amounts of damages can a victim recover in a medical malpractice suit? A Many factors determine the potential value of a medical malpractice case, including the severity of the patient’s injury, the amount of disability caused by the injury, the amount of evidence supporting the case, and the skill and experience of the malpractice attorney who handles the case. According to Florida law, the following types and amounts of damages may be recovered in a medical malpractice case:
Economic damages: These are damages awarded to compensate the injured patient for past, present, and future costs of medical care and loss of wages due to the patient’s injuries. Usually there is no limitation on the amount of economic damages that may be recovered (other than the liability insurance limits of the negligent health care provider).
Non-economic damages: These are damages awarded to compensate the injured patient for the pain, suffering, loss of enjoyment of life, and mental anguish caused by the patient’s injuries. Since July 1, 2007, Florida Statutes, Section 766.118, has placed limitations on the amount of non-economic damages that may be recovered. Generally, a patient with a “non-catastrophic injury (an injury other than a spinal cord injury causing paralysis, an arm or leg amputation, a brain injury causing sensory or motor disturbances, second- or third-degree burns over at least 25% of the body or 5% of the face and hands, total loss of vision, or inability to procreate due to loss of reproductive organs) may recover up to $500,000 against individuals who are licensed or certified health care providers and $750,000 against hospitals and health care providers who are not licensed or certified. However, if a “non-catastrophic injury” results in a permanent vegetative state or death, the patient’s representative or estate may recover up to $1 million against individuals who are licensed or certified health care providers and $1.5 million against hospitals and health care providers who are not licensed or certified. A patient with a “catastrophic injury” (a spinal cord injury causing paralysis, an arm or leg amputation, a brain injury causing sensory or motor disturbances, second- or third-degree burns over at least 25% of the body or 5% of the face and hands, total loss of vision, or inability to procreate due to loss of reproductive organs) may recover up to $1 million against individuals who are licensed or certified health care providers and $1.5 million against hospitals and health care providers who are not licensed or certified. If a “catastrophic injury” results in a permanent vegetative state or death, the patient’s representative or estate may recover up to $1.5 million against individuals who are licensed or certified health care providers and $1.5 million against hospitals and health care providers who are not licensed or certified. However, if a patient sustains non-economic damages while receiving emergency services, the patient may only recover non-economic damages up to $150,000 per claim and $300,000 for all claims against licensed or certified health care providers and up to $750,000 per claim and $1.5 million for all claims against hospitals and health care providers who are not licensed or certified.
Punitive damages: Punitive damages are not awarded to compensate for losses and damages caused by negligence. They are only awarded to punish intentional misconduct or gross negligence, which is conduct that is so reckless or wanton that it constituted a conscious disregard or indifference to the life, safety, or rights of the patient. Furthermore, punitive damages require more proof than compensatory damages. To prove entitlement to compensation for economic losses and pain, suffering, etc., the evidence supporting the patient’s claim need only be more persuasive than the evidence against it. But to prove entitlement to punitive damages, the evidence demonstrating intentional misconduct or gross negligence must be “clear and convincing. For this reason, punitive damages are seldom awarded in medical malpractice cases. When they are awarded, however, the patient may recover punitive damages up to three times the amount of the compensatory damages or $500,000, whichever is less, for conduct that was not unreasonably dangerous and motivated solely by unreasonable financial gain. For conduct that was unreasonably dangerous and motivated solely by unreasonable financial gain, the patient may recover punitive damages up to four times the amount of the compensatory damages or $2 million, whichever is less. However, if the patient proves by “clear and convincing” evidence that a health care provider specifically intended to harm him and did harm him, then there is no limitation on the amount of punitive damages that the patient may recover.
During a free consultation with the Clearwater malpractice lawyers at H. Dennis Rogers, P.A., we will provide you with a preliminary analysis of both the merits of your case and its potential value.
Statute of limitations and other rules
Florida has a two-year statute of limitations for medical malpractice cases and a complex set of statutory rules that govern the investigation and litigation of such cases. Before a patient can initiate an action for medical malpractice, the patient’s attorney must investigate the potential case by obtaining all of the pertinent medical records and having them reviewed by properly qualified medical experts who practice in the same medical specialties as the potential defendants. (Florida law requires health care providers to provide the patient or the patient’s attorney with the medical records upon presentation of a proper consent form that is signed by the patient or a duly appointed guardian or power of attorney.) If the reviewing experts find reasonable grounds to pursue a malpractice case, the attorney must obtain sworn affidavits from the experts in which they verify that there are reasonable grounds for a malpractice case. The attorney must then send copies of the affidavits, the records reviewed by the medical experts, and a “notice of intent to initiate litigation” to each of the potential defendants. After the potential defendants receive the notices, they and their insurance companies have 90 days to investigate the malpractice claims of the patient and either settle or reject them. (The insurance companies usually reject them.) Although the statute of limitations is tolled during this 90-day investigation period, the statute begins to run again when the period is over. This process is time-consuming and complex, and many patients wait until it is too late for an attorney to investigate their potential case before the statute of limitations elapses. For this reason, if you believe that you have been the victim of medical negligence, you should contact an attorney who specializes in medical malpractice cases as soon as reasonably possible. You can help the attorney to get an early start on the investigation of your case by obtaining the potential medical malpractice case records from your doctors and hospitals before your initial visit with the attorney.
Contact the Clearwater Medical Malpractice Firm of H. Dennis Rogers, P.A.
If you live or were injured in West Central Florida, including Pinellas, Hillsborough, Pasco, Hernando, Citrus, Polk or Manatee Counties, please contact us by using our toll-free telephone number: (888) 810-5155.