In layman’s terms, medical malpractice occurs when a healthcare professional performs treatment incompetently. It can also refer to failures by institutions such as hospitals. Medical malpractice claims arise frequently in Florida, and most such cases settle out of court.
Florida medical malpractice law looms large over settlement negotiations. The amount of compensation you receive, if any, depends largely on your bargaining skills and your command of the relevant law.
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Types of Medical Malpractice
Following are some common examples of medical malpractice:
- Anesthesia errors
- Birth injuries
- Lack of informed consent
- Delayed diagnosis
- Failure to diagnose
- Failure to order testing
- Failure to recognize symptoms
- Failure to treat
- Hospital-acquired infections
- Improper medication dosage
- Inadequate monitoring after a procedure
- Medication errors
- Misdiagnosis
- Negligent prenatal care
- Nursing home abuse and neglect
- Obstetric and gynecological negligence
- Poor follow-up or aftercare
- Premature discharge from the hospital
- Surgical errors
- Treatment delays
- Unnecessary surgery
- Using defective or unclean medical devices
- Wrong patient or site surgery
There are many other possible forms of medical malpractice.
What You Have To Prove To Win a Medical Malpractice Claim
Below is a description of the six elements you have to prove to win a medical malpractice case:
- The existence of a doctor-patient relationship. This element might be absent, for example, if your doctor was simply a witness to your accident who rendered first aid at the scene,
- Your healthcare provider owed you a specific duty of care. Your doctor might have been obligated to perform a C-section at some point during a difficult pregnancy, for example. Proving duty of care will probably require expert testimony.
- Your healthcare provider breached their duty. In other words, they failed to meet the demands of their duty of care. Proving breach of duty will probably require expert testimony.
- You suffered physical harm. A “good scare” is not enough. Once you prove physical harm, however, you can also recover from emotional distress.
- Your healthcare provider’s breach of duty was the factual cause of the harm you suffered.
- Given your healthcare provider’s breach of duty, the harm you suffered was a reasonably foreseeable consequence.
You have to prove all five of these elements to win your claim.
The Road to Negotiations
You need to complete the following procedures before negotiations take place:
- Hold an initial consultation with a Florida medical malpractice lawyer to confirm the viability of your claim.
- Hire a lawyer.
- Perform an initial investigation of your claim and gather evidence to support it. Your lawyer can do this for you.
- Draft and send a demand letter to the defendant or, more likely, the defendant’s malpractice insurance company. Have your lawyer do this.
- The insurance company will either reject your claim or offer a paltry sum. If they reject your claim outright, you might decide to file a lawsuit. If they offer a paltry sum, you can respond with a counteroffer.
It is at this point that negotiation begins.
Issues in Dispute During Negotiations
Settlement talks will revolve around two key questions:
- Is the defendant liable for medical malpractice?
- If so, how much money is the defendant liable to pay?
Answering the first of these questions depends on how the facts apply to the six elements above. The second question will trigger a discussion of economic damages, non-economic damages, and perhaps punitive damages.
Experts
Almost all medical malpractice cases involve the use of medical experts who provide evaluations and, in litigation, testify on their professional opinions. You might need to use a report written by an expert to buttress your assertions during settlement negotiations.
The Burden of Proof: A “Preponderance of the Evidence”
The burden of proof in medical malpractice cases is not “beyond a reasonable doubt.” It is “a preponderance of the evidence,” which is a much easier standard to meet. All you need to do is prove that your claim is more than 50% likely to be valid. Even 51% is enough.
Types of Damages
Florida law authorizes three major categories of damages:
- Economic damages for tangible losses such as medical expenses, lost work time, and more.
- Non-economic damages for intangible losses such as emotional distress and physical pain and suffering.
- Punitive damages where the defendant’s conduct was outrageous.
Non-economic damages often add up to far more than economic damages.
Filing a Lawsuit
Even if you ultimately intend to resolve your claim through settlement, there are reasons why you still might want to file a lawsuit:
- The opposing party is dragging their feet on negotiations, and you want to get things moving again.
- You need to file a lawsuit to beat the statute of limitations deadline.
- You need to gain access to the pretrial discovery evidence-gathering process. This is a powerful way to demand evidence that is in the defendant’s possession.
To file a lawsuit, you will need to include the affidavit of a medical expert stating that your claim appears to have merit. You can drop your lawsuit at any time, even in the midst of a trial. You can (and should) continue negotiating while your lawsuit is pending.
The Settlement Agreement
Once you reach a settlement, your lawyers need to draft a settlement agreement. In a medical malpractice settlement agreement, you agree to forever drop any claims you have concerning the incident in question.
In return, the defendant agrees to pay you a certain amount of money. Once both sides sign the settlement, it becomes a legally binding, enforceable contract.
You’ll Need an Experienced Miami Personal Injury Lawyer
Medical malpractice claims are scientifically and legally complex. They often involve a lot of money, and doctors are notoriously stubborn when it comes to refusing to settle. All of these factors require the assistance of a Miami personal injury lawyer from Shaked Law Personal Injury Lawyers.
Schedule a Free Consultation With Our experienced Miami Personal Injury Attorneys
For more information contact our law office online or call (305) 937-0191 today to schedule a free consultation to discuss your case and how we can help you.