Difference Between Medical Malpractice and Personal Injury

July 3, 2024 | Sagi Shaked | Medical Malpractice

Although most doctors are competent and conscientious, medical malpractice occurs more frequently than almost anyone is willing to admit. Indeed, a recent study by Johns Hopkins University concluded that medical malpractice claims the lives of more than 250,000 people every year, with many more suffering injury. 

If you ever suffer from medical malpractice, you can file a claim against the at-fault party (typically a doctor or a hospital).

Medical Malpractice vs. Personal Injury Claims

In a nutshell, medical malpractice claims are a type of personal injury claim. All medical malpractice claims are personal injury claims, but most personal injury claims are not medical malpractice claims. 

For example, car accident claims are personal injury claims, but are not medical malpractice claims.

How Are Medical Malpractice Claims Distinct?

There is no absolute boundary between medical malpractice and other personal injury claims. Medical malpractice claims, however, tend to include certain features more often than personal injury claims. See below for details.

The Discovery Rule

The Florida statute of limitations is a law that limits the amount of time a claimant has to file a lawsuit. In Florida, you generally have to file a lawsuit or finalize a settlement within two years of the date of your injury. There is an important exception, however, that applies primarily to medical malpractice: the discovery rule.

Imagine, for example, that your doctor accidentally left a scalpel inside your body after surgery. You didn’t start feeling any pain for quite some time, and by the time you discovered that you had a medical malpractice claim, a year and a half had elapsed since your surgery. 

That leaves you with six months, right? No–you still have two years. Under the discovery rule, the statute of limitations clock doesn’t start running until you discover (or should have discovered) your claim.  

No matter how long it takes to discover your claim, however, under the statute of repose you still only have four years after your injury to file a lawsuit. That is because evidence tends to deteriorate over time.

Pre-Lawsuit Barriers

Florida has enacted significant barriers to discourage people from filing frivolous medical malpractice lawsuits. Before you can file such a lawsuit, you must:

1. Investigate your claim.
2. Obtain a written medical expert affidavit stating that your claim has reasonable grounds (in other words, it’s not frivolous).
3. File a Notice of Intent to Initiate Litigation for Medical Negligence with the defendant. Include the medical expert’s affidavit.
4. Investigate your claim during the following 90-day pre-suit investigation period (the defendant will do the same). During this period, both sides have a limited right to demand evidence that is in the possession of the other party. The statute of limitations is suspended during this period, and the parties can extend this period by mutual agreement.
5. During the 90-day period, the defendant must either reject your claim, offer to settle, or admit liability and agree to arbitration to determine the amount of compensation. A court will treat the defendant’s failure to respond as a rejection of your claim.
6. If the 90-day period proves insufficient to resolve the case, your attorney must file a certificate stating that they have conducted a reasonable investigation and there are grounds for a good faith belief that the defendant was negligent. Only then can you file a medical malpractice lawsuit.

Mediation is optional, but the court may pressure you to at least try this approach.

The Use of Expert Witnesses

The use of expert witnesses is occasional in most personal injury claims. By contrast, most medical malpractice claims involve the use of at least one expert witness. Typically, the expert witness testifies about duty of care and causation.   

Proving Causation

It is frequently difficult to prove that a defendant’s negligence actually caused the plaintiff’s injuries. In medical malpractice, the pathway between cause and effect can be quite complex, requiring more than a little medical knowledge. 

Hiring a Medical Malpractice Lawyer Is a Practical Necessity

Yes, you have the right to represent yourself in a medical malpractice claim. However, you shouldn’t exercise that right. Most medical malpractice claims are too complex and difficult to win to represent yourself. 

As long as you have a strong claim, however, hiring a medical malpractice lawyer is not as difficult as you might imagine. Medical malpractice lawyers take their legal fees as a percentage of your eventual winnings. If you don’t win, you will not owe your lawyer any attorney’s fees.  

Contact Our Medical Malpractice Law Firm in Miami, FL

If you’ve been injured in an accident in Miami, FL and need legal help, contact our Miami medical malpractice lawyers at Shaked Law Personal Injury Lawyers to schedule a free consultation.

Shaked Law Personal Injury Lawyers
20900 NE 30th Ave Suite 715
Aventura, FL 33180
(305) 937-0191