Personal Injury - Medical Malpractice
Boca Raton, Ft. Lauderdale, West Palm Beach, Florida
Medical malpractice is a form of negligence where an injury results from the failure of a medical professional or medical facility to exercise adequate care, skill or diligence in performing a duty.
Such medical professionals can include:
- Medical technicians
- Healthcare facilities
If you suspect you’ve been injured by medical malpractice on the part of any health care professional, it would be wise to consult a medical malpractice attorney as soon as you can. Time is of the essence in all lawsuits, and medical malpractice cases are particularly complex and time-consuming. The sooner your attorney can start on gathering information and preserving evidence, the greater your chances will be of obtaining fair compensation.
Meeting the standard of care
In order for medical professionals to meet their required duty of care, they must adhere to the standards of treatment applicable to their individual field of practice. Basically, the professional’s duty arises from the accepted practices of other like professionals or facilities in the same field and geographical area.
Therefore, the standard of care that applies to other individuals in that particular field or geographical area must be met in order for the professional to satisfy the required duty. In the case of a doctor who is a medical specialist, the standard of care is determined by the standard of good medical practice in that specialty within the community.
Medical professionals do not have the duty to heal the patient, or even have satisfactory results. Rather, their duty is to provide the type of medical care that is accepted as the standard for that particular field in the professional’s medical community. Likewise, in the case of a specialist, the professional must meet the accepted standards in that medical specialty.
Unsuccessful treatment does not necessarily imply malpractice
Medical malpractice does not occur every time medical treatment is not successful. It is possible for a medical professional to misdiagnose an ailment and still meet the required standard of care. A misdiagnosis can occur even when all proper tests are performed accurately or evaluated by a skilled doctor with the utmost care. An action is not considered medical malpractice unless the professional fails to meet the required duty to provide the appropriate standard of care.
For example, if a doctor fails to get a medical history, order the appropriate tests, or recognize observable symptoms of the illness, he or she may have breached the required duty. Typically, in order to prove that you were injured due to the failure of a health care provider, you must show that the provider failed to exercise a duty of care and that the failure was the proximate, or direct, cause of your injury.
Types of Medical Malpractice
The concept of medical malpractice negligence is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. The most common cases brought by medical malpractice attorneys against doctors are:
- Improper diagnosis
- Failure to diagnose
- Medication errors
- Surgical errors such as a slip of the knife severing a nerve during an operation
- Medical instruments, sponges, needles or other foreign objects dropped inside a patient and left there after surgery
- Errors in prenatal diagnostic testing
- Failure to advise of diagnosis
- Lack of informed consent
- Abandonment (failure to attend to a patient)
- Improperly prescribing a drug
- Failing to inform the patient of available treatments
- Continuing a treatment that has been shown to be ineffective
- Sub-standard treatment or incorrectly performed treatment
Care and diligence
A doctor has a duty to use care and diligence in diagnosing your illness, so that the proper treatment can be recommended. In order to properly diagnose a condition, a doctor should ask about your medical history as well as your family's medical history. The doctor also should ask for a detailed description of current symptoms and should perform a thorough examination, which includes necessary diagnostic tests.
Doctors also have a duty to disclose information pertaining to the treatment you will receive. If your condition is such that it is beyond the scope of practice of the examining doctor, or beyond the doctor’s expertise, he or she must refer you to a specialist.
If your doctor fails to follow these basic principles, and you’re injured as a result, you may have a valid malpractice claim. Medical malpractice can occur at any point in the diagnosis and treatment course. For example, the wrong chart could be placed at your hospital bedside, resulting in you being given medication that you are allergic to, that causes serious harm or even death.
An example of medical malpractice
After hurting your wrist you go to your family doctor, but he concludes it is just a sprain and doesn't request an X-ray, which would have revealed a fracture. The fracture goes undetected and, as a result, your wrist becomes permanently damaged. The doctor may be negligent for failing to order an X-ray, or possibly for not referring you to an orthopedist.
Expert testimony required
Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. In addition, expert testimony is required to establish that the malpractice caused the patient's injuries, unless the cause is obvious to a layperson, such as where the wrong arm is amputated.
Delayed Cancer Diagnosis
One of the most common types of medical malpractice cases is misdiagnosis or delayed diagnosis of cancer. This is particularly true of breast cancer, which, according to various reports, represents the largest segment of medical malpractice lawsuits in the U.S.
One reason for this is the fact that breast cancer is the most common type of cancer among women in the U.S. and the leading cause of death for women ages 40 to 55. Despite this, many women who develop breast cancer and could be treated are denied the opportunity when physicians negligently fail to diagnose their condition until it is too late. The result of this negligence is often the loss of treatment options and/or the chance of survival.
The following are examples of some of the more common acts of negligence by physicians in failing to timely diagnose and/or treat breast cancer:
- Failing to order a mammogram, misinterpreting a mammogram, or failing to react to mammogram findings
- Relying upon mammography in place of a physical breast examination
- Failing to perform a breast examination which would have identified an obvious tumor
- Failing to identify a palpable lump during a breast examination
- Diagnosing a cancerous tumor as a breast infection
- Diagnosing a tumor as benign and failing to perform a biopsy
- Disregarding a history of sharp pain in the breast, or signs of retraction
- Failing to determine the cause of nipple discharge
- Relying upon negative aspiration biopsy
- Failing to order additional radiological tests, a biopsy, or ultrasound when appropriate
- Failing to communicate with the patient
When a diagnosis of cancer is made, the physician examines the affected tissue and identifies the type of cancer by the microscopic appearance of the cells. The doctor then classifies the cancer according to how advanced it is – otherwise known as staging. Cancer treatments vary widely depending upon the type of cancer and its stage. The probability that breast cancer will recur in a patient is directly related to the stage of the malignancy. If breast cancer is detected and addressed before the cancer has spread to any lymph nodes, the chances of survival are significantly better than otherwise. As such, any undue delay in diagnosing or treating breast cancer can have devastating consequences.
Medical Professionals also have a duty to disclose certain types of information pertaining to the treatment you will receive. Typically, if the professional does not have the requisite experience or knowledge in treating your injury or ailment, it is necessary for the professional to refer you to someone, most likely a specialist, who does have that knowledge and experience. If these basic principles are not adhered to, and as a result you did not receive the treatment you should have received, or were further injured from the treatment, you may have a case for a malpractice claim.
Two types of damages
There are two types of damages available in a negligence medical malpractice case:
- Compensatory damages
- Punitive damages
Compensatory damages are derived from the word "compensate," meaning "to make up for" or "to make whole". Generally, these damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained.
In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence – behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again.
If you are in Florida, and have been injured as a result of possible medical malpractice, or if you have a loved one injured in that way, call or email us as soon as possible. Delay is not in your best interests because medical malpractice cases require a great deal of time to prosecute. The sooner we can get started on working for you, the better your chances will be of winning fair compensation. Your initial consultation will be free of charge, so contact us today.