Medical malpractice and wrongful death claims are subsets of Florida tort laws that provide civil compensation for victims of healthcare professionals who make mistakes or errors.
Medical malpractice in Florida refers to any act by a physician that deviates from the accepted norms of medical care and causes personal injury – or even death – to a patient (766.102. Fla. Stat. (2020)). Most cases that constitute medical malpractice involve scenarios where a physician or surgeon fails to do what is acceptable as standard under the circumstances. Thus, it is not a claim for the bad outcome of medical care.
Some common scenarios where medical malpractice occurs include:
- When a physician insists on treating a condition outside their specialty and thus causes damage.
- When the physician is impaired by drugs or alcohol but continues to treat patients.
- When a physician performs unnecessary medical procedures to make money.
- When a physician prescribes unnecessary drugs or makes prescription errors.
- When a physician intentionally fails to give adequate information to help the patient make informed decisions.
- When a physician deliberately withholds information or only provides information that reflects their personal values and preferences.
- A healthcare professional who commits a surgical or non-surgical error.
On the other hand, a wrongful death claim refers to a civil suit against any professional, business, or individual who bears liability for the death. Generally, the following persons are commonly sued in a wrongful death claim:
- the driver or employer at fault in a road accident
- the designer or builder of the faulty roadway
- the manufacturer, distributor, or installer of a defective motor part
- the persons who sold, served, or gave alcohol to a visibly impaired driver (including the bar owner)
- Anyone convicted of intentional murder or manslaughter
- A negligent healthcare professional
Florida Medical Malpractice and Wrongful Death Law
Florida law sets guidelines for cases that qualify for a medical malpractice suit and wrongful death claim. Per 766.102 Fla. Stat. (2020), a claim must meet four criteria viz-a-viz:
- Duty of care
The claimant must prove that the defendant had a fiduciary responsibility to the claimant. For example, a doctor must treat the patient following an established doctor-patient relationship. However, the duty of care does not apply in some cases, such as a drive-by consultation.
- Breach of duty
A breach of duty exists when the defendant fails to execute their fiduciary duty. For example, a doctor did not treat the patient according to the acceptable standard for medical practice in their specialty. Because this criterion is subjective, the claimant would need an expert witness to explain this breach to the jury.
- Proximate cause
The claimant also has the burden of proof to establish that the defendant was directly responsible for the injury or that the death had to be a direct cause of the injury despite other reasons. Proximate cause is complicated to prove without an attorney. The claimant must establish that:
- the defendant’s actions
- in a natural and continuous sequence
- without any intervening event
- produces injury
- and the injury would not have occurred otherwise
Proximate cause is generally difficult to prove without legal assistance.
- Existence of compensable injury for damages
Unlike the earlier criteria, this one is quite straightforward. The claimant must demonstrate a compensable injury for economic loss, e.g., lost wages and non-economic suffering, such as pain and emotional suffering.
Should I Get An Attorney?
Although healthcare professionals have malpractice insurance, you cannot expect a doctor to admit wrongdoing or the insurance company shell out money because you made a claim. Medical malpractice cases and wrongful death claims can be difficult to prove without an attorney. Healthcare professionals are skilled and undergo training to ensure they provide a high standard of care.
You will need an experienced attorney to examine your claim and prove the physician failed to follow the standard in their field. The attorney will also consult and retain a team of expert witnesses to review your claim and testify at the hearing if there is one. Likewise, you can also expect the healthcare professional to have an equally competent attorney and a team of expert witnesses.
In many cases, however, medical malpractice cases end in a negotiated settlement agreement. An attorney will ensure you get a fair settlement under the circumstances.