I often find myself explaining to people why, although they’ve clearly been victims of medical negligence, they do not have a viable medical malpractice claim.
To have a viable malpractice claim, you must be able to prove each of the following three things. One or two out of three isn’t enough:
1. Negligence. Negligence or “malpractice” is a medical mistake that should not have happened. People are often surprised to learn that not all medical errors are actionable. I explain that it is called the “practice” of medicine for a reason.
Doctors are only guilty of negligence when no other reasonable physician would have treated the patient the way he or she did, under the circumstances. That is called failing to meet the “standard of care,” which is established through the testimony of physicians who are experts in their fields.
2. Damages. Damages are the economic and non-economic injuries you sustained. I frequently hear from people who were victims of malpractice that could have injured them, but fortunately, it didn’t. A common example is when patients are prescribed a medication they’re allergic to, but they realize it in time and don’t take the medication, therefore, they are not hurt by the mistake. You must suffer actual damages in order to pursue a claim. The damages must also be significant and either permanent or of long-term duration. The
extensive “tort reform” passed by the Florida legislature has made it harder and more expensive to sue hospitals and medical professionals. I must carefully evaluate whether the foreseeable recovery is enough to offset the costs, attorneys’ fees, and healthcare liens and still have something left over for the injured person. Often, it isn’t.
3. Causation. You must prove that your damages were caused by the negligence. For instance, say you’ve lost a loved one to cancer and later learn that an earlier doctor failed to diagnose it. If the treatment and prognosis would have been exactly the same, even with earlier diagnosis, you can’t prove that the death was caused by the negligent delay in diagnosis.
Another example is when people fail to return to baseline functioning following treatment for a significant motor vehicle or workplace accident. Some initial injuries are so severe that no matter what treatment the doctor provides, the patient is never going to be pain-free or return to how he or she was prior to the accident. As you might imagine, many medical malpractice lawsuits are defended on the basis of causation.
Medical malpractice cases are extremely risky and expensive to pursue and they are not without risk to the injured
person. It is important to hire an experienced attorney who specializes in this highly complex area of law. If you suspect you’ve been injured by medical negligence, call us today.
