Green, Kaster & Falvey, P.A. handles a significant number of major medical malpractice cases annually. Although we represent a large number of victims of malpractice, we are forced to reject far more than we accept due to a misunderstanding by most people as to what constitutes malpractice. In addition, the legislature continues to erode the rights of citizens to recover even where malpractice exists.
In this report, we will try to explain what malpractice is and what it is not.
Medical malpractice is not limited to medical doctors. It applies also to osteopaths, nurses, dentists, health care facilities and others providing healthcare services. In this report we will refer to all of these individuals and entities as "healthcare providers".
In order for there to be an actionable malpractice case, a healthcare provider must have acted improperly toward a patient. The legal definition is that the healthcare provider breached the accepted medical practices for a specific specialty of medicine. Loosely speaking, it can be equated with carelessness or negligence. It is necessary to prove that the wrongdoing of the person being charged with malpractice actually caused injury and damage. The fact that a less than favorable result occurred, or even a poor result occurred, does not necessarily mean malpractice exists.
Establishing wrongdoing on the part of a healthcare provider is often difficult. It requires the hiring of specialists with the same training as the one being charged with misconduct to testify as to what should have properly been done. Since medical organizations to which most healthcare providers belong discourage them from testifying against one another, it is difficult to secure experts who have the integrity and courage to come forward and testify as to misconduct by one of their peers. Likewise, many insurance carriers providing coverage to a healthcare provider require that he or she not testify against another provider having insurance with the same company.
Rarely do wrongdoers step forward, admit the mistake and offer compensation. Usually, the healthcare provider indicates to the patient that the injury was a result of "an unfortunate event" or simply, a "bad result." It is left to the patient or the family of the patient to go further and determine if misconduct was involved.
Proving malpractice is also difficult because the person being charged is generally the one who writes the reports that often must form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the misconduct happened, and they choose how they want to describe the event, records seldom are descriptive of what truly happened. In addition, there have been more than a few occasions where records have been changed or added to after the fact to "cover up" what actually may have occurred. Likewise, other healthcare providers may frame their reports so as to protect the one guilty of misconduct. There have been many cases of malpractice resulting in death where a burial or cremation without an autopsy prevented discovery of the wrongdoing.
The reading and understanding of medical records requires the attorney and staff to understand medical terms that are obscure to most persons and to have available a substantial medical library together with resource persons who can assist in digging out what really may have happened. For this reason, many attorneys do not have the necessary background or skills to evaluate or bring a malpractice suit.
The first question that we need to know when you contact us is whether there was injury and how serious was that injury. Since malpractice involves the believability of your expert witnesses over the healthcare provider's experts, substantial expenses must be incurred in hiring the best experts and making sure that we have all of your medical records, diagnostic tests and background documents. We must know everything about your care and background to avoid surprise and properly understand your situation. There are many cases that we decline to handle because the cost of litigation, which usually runs in the tens of thousands of dollars, is not supported by the value of the injuries produced by the misconduct.
If we find that you have sustained a serious injury that may have been caused by medical misconduct, the next thing we need to know is whether the action of the healthcare provider actually caused the injury. A drunk person can run through a red light and be guilty of misconduct, but he cannot be sued for that wrongdoing if no one is injured as a result of his going through the stop light drunk. Similarly, a healthcare provider can act improperly, but unless it can be said that "but for" the wrongdoing of the provider the injury would not have occurred, or that the wrongdoing played a substantial part in causing the injury or that the misconduct deprived the patient of a substantial chance of survival, we are not in a position to help you. As an example, the giving of wrong medication or unacceptable doses of medication may constitute malpractice, but unless it causes injury, there can be no action for the misconduct. A healthcare provider may fail to diagnose a serious medical condition, but unless the diagnosis would have changed the outcome, we cannot help you.
We will want to know the date(s) that the various events occurred. Statutes of limitation and repose severely limit when a suit can be brought. In Florida for example, a suit can only be brought within two years from the date that the patient should have known that injury may have been caused by malpractice but no more that four years from the actual event in the absence of fraud or misrepresentation that can extend the term to seven years. The determination as to when the time has expired for bringing an action is very complicated and each case has to be evaluated separately. For this reason, this firm usually uses two years from the date of the wrongdoing as being a guide as to when the statute runs and generally recommends to the client that they make certain their suit is filed well within this period of time. It is critical that you see us as soon as you have any reason to question your medical care. Even if you believe it is too late, we can determine if you have properly applied the law to your factual situation.
The determination of responsibility for malpractice also includes evaluating who is liable. The surgeon may be liable for the acts of the nurses and assistants in an operating room. An employer is liable for the acts of staff member employees. A hospital may be liable for contractors it retains to operate emergency rooms and outpatient facilities.
There are statutes that protect state agencies. There are a number of hospitals that are teaching facilities and employ physicians who are actually considered employees of the State of Florida. These physicians, including professors, residents and interns, are accorded sovereign immunity which limits the time suit can be filed, the amount that can be recovered and the amount of attorney fees that are charged.
Yet even with these difficulties in proving malpractice or reaching the culpable party, many events occur where we can help the patient. A healthcare provider who clearly disregards well-established standards of medical practice or who performs procedures that are well beyond his level of skill and competence is guilty of malpractice and if the damages for which he is responsible are serious, we can assist in holding him liable for those damages. Initial consultations with attorneys specializing in medical malpractice cases are almost always free of charge. It is usually requested that the potential client bring with them all of their medical records that relate to the event to be discussed. At the initial consultation, the attorney is usually able to classify the facts presented into one of three categories: strong, moderate, or weak potential to develop into a productive claim. It is usually possible for the attorney to estimate the cost of obtaining the necessary records and the opinion of required experts. In some instances, the attorney is prepared to waive the initial cost deposit because of the seriousness of the injury and/or the apparent strength of the overall claim. Depending on the unique facts presented, the attorney may have extremely valuable experience in a similar matter.
Once we have made a determination that there appears to be malpractice that caused serious injury for which the statute of limitations and repose have not expired, we will discuss with you the filing of suit. We will discuss with you the manner in which we will represent you and how costs will be handled. We will discuss with you the risks of bringing suit. Generally, your attorney fees are taken out of the recovery and if there is no recovery, there are no fees. If you win the case at trial, the Court can assess against the other party your reasonable costs in bringing suit. If the case is settled, your attorney fees are a part of the settlement and taken from the amount of settlement. One thing that must be kept in mind is that the assessment of costs in favor of the prevailing party also means that if you lose your case, the healthcare provider's costs can be assessed against you and you could have a judgment entered against you for those costs. It is therefore important to have an attorney who is experienced in medical matters to properly evaluate your case.
In Florida, there is a statutory obligation on the part of the injured patient and his attorney to conduct a good faith pre-suit investigation into the merits of a potential medical malpractice claim. At a minimum, pertinent records must be gathered and reviewed by a properly qualified expert. Then, if there is a reasonable basis for pursuing the claim, the expert must sign an affidavit setting forth his opinions in some detail. This affidavit, accompanied by a Notice of Intent letter, must be sent to the potential medical malpractice defendants alerting them that at the end of ninety (90) days, a lawsuit will be filed against them. During the ninety-day pre-suit period, "discovery" of information by both sides is permitted. Interestingly, an unsworn statement may be taken from the healthcare provider, but it may never be used for any purposes whatever in a subsequent lawsuit. Thus, even if the physician makes a statement at trial that is 180 degrees different than expressed during pre-suit screening, the change in his testimony cannot be used or referred to.
If a case has not settled during the ninety-day pre-suit period, suit is filed. Your attorney is with you at all times afterwards where your rights are at risk. It is important that you know which attorney is going to be handling your case, that you have a commitment that he or she will promptly answer your calls and questions, and that the same attorney will be with you throughout the litigation.
If you believe malpractice may have occurred call an attorney as soon as possible. Our office is available for consultation with potential clients or attorneys. There is no charge for the initial consultation.
Green, Kaster & Falvey, P.A. is available to answer your questions at no charge in order to determine if you have a case where we can help.