Medical Malpractice

11 Steps to Take If You Are a Victim of Medical Malpractice

By February 21, 2020 No Comments
medical malpractice

Medical errors claim the lives of an estimated 250,000 to 440,000 people in the US every year. That makes medical errors the third leading cause of death in the country.

This helps explain why over half of physicians over age 55 have been sued.

In Florida alone, 1.50 per 100 physicians have faced a medical malpractice claim each year from 2012 to 2016. In the same period, 51.86 per 1 million residents sued their physicians for medical errors.

All these prove that the Florida healthcare system is rife with medical mistakes. If you or a loved one has been a victim of such an error, it is important to know your rights. However, you also need to prove that you indeed suffered from a medical error.

If you suspect that your doctor has committed an error, take these following steps right away.

1. Consider Talking to the Medical Professional First

Even the most competent and conscientious doctors make mistakes. Medical errors rarely happen because a doctor is habitually negligent or incompetent. Otherwise, that medical professional would have failed the licensing exams.

One way to gauge this is to look up the doctor’s background and history to see if they already dealt with a lawsuit. If not, and your case might be the first, think about talking to the doctor in question first.

Your goal is to understand what went wrong and to let the doctor gauge if it is resolvable. In this case, your doctor will likely be more willing to correct the issue, possibly even free of charge.

What if your injuries and losses are too severe, and the doctor is disputing your claims? Then it is time to seek another doctor for a second opinion.

2. Seek a Second or Even Third Doctor’s Opinion

The rate of seeking doctor’s opinions vary from 1% to 88%, depending on the patient population. Another review of second opinion requests found their prevalence to be 6.5% to 36%.

Second opinions do not always differ from the first. However, a study found that more than a fifth of second opinions had a different final diagnosis.

If you believe that you or a loved one is a victim of misdiagnosis, it is your right to see another doctor. Not only may this help you build your case — it may even save your life.

3. Switch To a New Doctor

If all the evidence points out that the first doctor could have prevented the mistake, switch to a new one. Your health and safety are your priorities — you can think more about suing the doctor later.

4. Abide By Your New Treatment Plan

Strictly follow your new doctor’s treatment plan. Again, your priority here is to recover. This also benefits your case, as it may reveal other harms caused by the previous doctor.

5. Understand How the State of Florida Defines Medical Malpractice

Under Florida Statute §766.202, “medical negligence” is equivalent to medical malpractice. It occurs when a health care provider breaches the professional standard of care.

Under Florida Statute §766.102, this standard of care applies to all health care providers. It should be a “level of care, skill, and treatment” accepted and deemed appropriate by other “reasonably prudent similar health care providers”.

A health care provider breaches this standard through a negligent act or omission. If this results in an injury to or the death of a patient, that classifies as medical malpractice.

Such errors can occur at any point in the health care service. This can happen early on when a doctor makes a mistake on the patient’s diagnosis. The mistake can also happen during or after the treatment.

6. Learn About The State’s Statute of Limitations

The “statute of limitations” is the “deadline” or the time limit you have to file a lawsuit. Under the Florida Statutes section 95.11(4)(b), this is two years from the date the medical error occurred. This is the “Standard Deadline”.

In some cases, the law may allow for an extension of this deadline.

The “Discovery Rule”

A good example is if the victim discovered the injury at a later date. The law may extend the time limit, so long as the discovery still occurred within a “reasonable” time.

This extension, also known as “blanket deadline”, is four years from the actual date of the harm. After four years from the date of your injury, you can no longer bring your case to court. This applies to all medical malpractice cases, except in cases of fraud or if the victim is a minor.  Keep in mind that the statute of limitations is two years, although it can be extended up to four years if certain conditions are met. There is no guarantee the statute will be extended, however, so keeping an eye on the conservative two-year statute is important and best practice.

In Case of Fraud

If there was a fraudulent act involved, the statute of limitations is set at seven years from the time of harm. Fraud can be an intentional misrepresentation or concealment of a fact related to a case. Either way, they led to you discovering your injury at a much later date.

In short, you have a total of seven years if the doctor also committed fraud. After this, you can no longer bring a lawsuit against the health care provider. However, proving the fraud can be difficult. It is best and most conservative to proceed as if the statute of limitations is two years.

Statute of Limitations for Minors

Did you know that 2 to 3 in every 1,000 children older than 3 have cerebral palsy? 1 to 2 per 1,000 babies also suffer from Erb’s palsy. These two are some of the most common forms of birth injuries.

Birth injuries can also result from medical negligence or malpractice. However, children may not immediately show symptoms of such injuries.

This is why Florida permits the family of such children to file a lawsuit up through the child’s eighth birthday, if certain conditions are met. 

7. Know Your Rights as a Victim of Medical Mistakes

When you first saw your doctor, your goal was to get your health in check. You expected the health care professional to act within the standards of care. Unfortunately, instead of getting better, they caused you even more pain and suffering.

You have every right to pursue these professionals for the losses you have sustained. These include disability, past and future medical bills, and loss of income. You may also sue them for suffering, hardship, and even unusual pain.

8. Create a “Journal” of Everything That Happened To You

Many people who face something traumatic experience loss of memory. Not wanting to recall the fright they have felt is just one reason behind this “amnesia”. The noradrenaline produced by the body in such cases interferes with memory storage.

Learning that you are a medical malpractice victim could be very traumatic. This may then cause you to forget details of what transpired during your contact with the doctor. As small as they may be, however, those details could actually help your case.

If you believe that a medical professional you have seen made a mistake, write down what you can remember. Try to recall everything that transpired during your visits to the doctor. List down the symptoms you mentioned to your physician and what the doctor advised you in return.

Something that your doctor said — or did not but should have — may help you build your case.  

9. Get In Touch with a Medical Malpractice Attorney

As soon as you notice your health has gotten worse after a treatment, call a personal injury attorney

Here are some of the things that lawyers specializing in medical malpractice can do for you.

Determine the Merits of Your Case

Even Florida’s statutes use the term “burden” to refer to what victims have to prove when suing a doctor. It is an accurate term, since proving that a medical professional made a mistake is very hard. You will need enough hard evidence for your claim to be even valid.

Seasoned medical malpractice attorneys can help you determine the merits of your case. They will look into the details of your case and gauge how solid your claim is. Best of all, a reliable medical malpractice lawyer will evaluate your case for free.

Help You Deal with Insurers

A medical malpractice claim involves dealing with at least two insurance companies. One would be your own health insurance provider, the other being the doctor’s insurer.

You have already suffered enough, so dealing with insurers is the last thing you need. Especially the defendant’s insurer, whose goal is to invalidate your claim.

A medical malpractice attorney can take over the dealings with these parties. Your legal team will speak to and negotiate with these insurers and their attorneys.

Build A Strong and Objective Case

It is normal for medical malpractice victims to feel angry and resentful, especially since health care costs in the US continue to rise every year. After paying a lot of money to get healthy, these victims ended up with something worse.

As normal as these negative emotions are, they can cause you to lose objectivity. Remember: A strong medical malpractice case relies on solid evidence and hard proof. If you cannot remain objective, you will have a hard time coming up with proof.

Seasoned lawyers will look at your case from an objective point of view. They will base their decisions without the influence of personal feelings or opinions. However, you can still expect them to be compassionate and understanding of what you feel.

10. Assist Your Lawyer in Building Your Case

A medical malpractice lawyer will take care of almost every aspect of your case. This includes requesting your medical records and investigating the defending doctor. They will also look for credible witnesses who can testify on your behalf in court.

In the Sunshine State, only a few can provide expert testimony relating to the standard of care. These are medical professionals themselves who have an active and valid license. If the defending doctor is a specialist, the expert must be a specialist in the same field.

This further highlights the need to seek a second doctor’s opinion. Your lawyer can work with your second (or third) doctor on behalf of your case.

This is also a good time to bring out your journal. Share the pertinent details you have written with your lawyer. An experienced lawyer can find clues in it that you may have thought to be irrelevant.

11. Report All Health Changes To Your Doctor and Lawyer

As you follow your new treatment plan, you may notice new health symptoms. Many medical mistakes or acts of negligence can cause delayed symptoms, after all. Traumatic brain injuries, which affect 1.5 million Americans each year, are a good example.

Granted, brain injuries are more common in auto accident cases and slip, trip, and fall victims. However, they can still result from medical errors, such as if a surgery resulted in infection. This may also occur through exposure to a toxic substance during medical treatment.

Either way, make sure that you report all these new signs to both your new doctor and lawyer. Your new doctor will take them into account to either update or change your treatment plan. Your lawyer will use it to further prove your previous doctor’s mistake.

Also, be sure to tell your lawyer if someone from the defending party contacts you. For instance, your previous doctor may call you in the hopes of settling out of court. Another example is the defendant’s insurance company calling you to offer a settlement. 

Do not agree to anything without talking to your lawyer first. Even if you think the settlement amount is enough, it may turn out to be too small. Especially if your injuries have a high likelihood of worsening over time. 

Let a Seasoned Attorney Take Over and Focus On Getting Better

As you can see, medical malpractice cases are complex and can cause serious losses to victims. At the same time, suing a medical professional without legal aid could be very stressful. You have already been through enough, and your goal should be to get better as soon as you can.

This is why you should hire a medical malpractice attorney from the very start. The moment you suspect that you or a loved one is a victim of a medical mistake, get in touch with our lawyers ASAP. Our medical malpractice lawyers will help you determine right away if you even have a case.