Melbourne Malpractice & Nursing Home Neglect Lawyer

What is Medical Malpractice?

Medical malpractice and medical negligence are one and the same. Medical malpractice/medical negligence generally occur when a health care provider (most likely a physician or a nurse), does something that they are reasonably not supposed to do under the circumstances or fails to do something that they are reasonably supposed to do under the circumstances. These events are called a breach of the standard of care. An act of medical malpractice may or may not result in an injury. When an act of medical malpractice does result in an injury, a case has the added elements of causation and damage. Most firms require that an act of medical malpractice result in a serious injury before the case can be accepted due mainly to the baseline expense of investigating and prosecuting a medical malpractice case. At The Law Offices of Bryan J. McCarthy, our dedicated Melbourne medical malpractice attorney is here to help victims navigate this challenging time.

In Florida, Medical Malpractice cases are governed by a very specific set of laws and regulations. Links to those actual laws are set forth herein and can also be found on our resources page. Florida Statute 766 is the principal law that governs medical malpractice cases in the state of Florida. It sets forth the rules and regulations of how and under what circumstance a medical malpractice case may be brought. Another critical statute is Florida Statute 95.11. This is the statute that controls when a case may be brought. Put another way, it sets the time frame within which the case MUST be brought. If this time frame is not met, the person will lose their ability to ever bring their case. The calculation of the statute of limitations is very complex under Florida Law. Many courts have issued legal opinions, called case law, as to when the statute of limitations begins to run. Given the complex nature of the analysis, a legal professional should always be consulted. Finally, there is interplay between Florida Statute 766 and Florida Statute 768. Florida Statute 768 is Florida’s general negligence statute. However, contained in Florida Statute 768 are provisions for wrongful death and sovereign immunity, both of which have interplay with the medical malpractice laws.

How Does a Person Know if They or Their Family Member is a Victim of Medical Malpractice?

Whether or not an act, or a failure to act, rises to the level of medical malpractice is to be determined by medical experts. A medical expert is a person who is similarly trained to the health care provider whose care is in question, who reviews the records and then provides an opinion as to whether or not the care rendered was within the standard of care. Presently, the law requires that the experts used to review cases, be in the exact same specialty as the physician they are reviewing and criticizing. Having the ability to find these highly specialized experts, retain them and communicate with them is a specialized set of skills and thus, not just any law firm has the ability, economically and knowledge wise to accomplish this critical phase of a medical malpractice case.

How Long Does a Person Have to Bring Their Case in Florida?

The time frame within which a medical malpractice case MUST be brought is governed by Florida Statute 95.11(4)(b). The specific language is as follows: (b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4‐year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7‐year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

The calculation of the likely statute of limitations is fact specific in most cases. Thus a detailed analysis needs to be performed by legal counsel before a specific determination can be made.

What is a Case Worth?

The valuation of a medical malpractice case is one of the most difficult issues encountered by our firm. We recognize that if a person is a victim of medical malpractice that they likely have a significant injury and they have suffered horribly. Further, if a family has lost a loved one due to medical negligence there can be very significant damages. Florida allows, generally, for two types of damages to be awarded in matters involving medical malpractice. Those damages are economic damages and non‐economic damages. Economic damages generally are damages for lost wages, future lost wage-earning capacity, past medical expenses, future medical expenses, and support and services. In the case of a wrongful death, economic damages include funeral expenses, lost net accumulations, lost support and services, and past lost wages. Non‐economic damages are generally for pain, suffering, disfigurement, scarring, loss of ability to enjoy life, loss of consortium, and loss of companionship and comfort. Unfortunately, Florida has some very unfair laws related to wrongful death claims. Those laws disproportionately affect our aged populations. If a person passes away and has no spouse or children under the age of 25 or dependents, there are no survivors who can collect non‐economic damages. Thus in a case involving the death of an elderly widow, with no children under 25, there is no claim for pain and suffering for the adult children who lost their mother.

Case valuation can often be practically limited by the amount of medical malpractice liability insurance the defendant health care provider has. Currently, a case’s value can also be affected by our current caps on non‐ economic damages that are in place. Florida Statute 766.118 sets forth the damage caps. Finally, a case’s value can be affected by the nature of the defendant. Some defendants are part of the State government and as such entitled to sovereign immunity. If this is the case, the case value is affected by Florida Statute 768.28.

What is the Process of Determining if a Person has a Case?

Every case in our office starts with a referral from a fellow lawyer or a direct call to our office from a concerned potential client. The initial contact with our office will be with a team member whose only job is to get to know the potential client and the facts of the case. That team member will take down detailed information concerning the case and spend as much time with the potential client as is necessary to fully understand the situation and the potential case. When someone calls, they should be prepared to give the names of physicians and facilities where they received treatment as well as the best dates they can manage as to when the events and care occurred. If someone is calling for a loved one, they should be prepared with their date of birth and contact information. We will ask the potential client their address, telephone number, and email address if there is one. We ask for this information as we will need to contact them in the future.

If the case meets our criteria, the potential client will be sent a package of materials including documentation that will allow us to investigate their case fully. Those materials will include medical records authorizations, an authority to investigate and statements of client’s rights. There will be indications as to where to sign and a self‐ addressed stamped envelope will be included for them to return the materials to us.

Once we receive the authorization, pertinent medical records will be ordered and reviewed by our attorney. Some cases are declined at this point depending on what is actually documented on their medical records. Our declination of the case, at this point, is based upon our experience with similar cases, evaluation of damages, evaluation of potential significant defenses and medical research.

If we feel that the case merits a medical review, medical experts in the appropriate fields will be retained and the records forwarded to them. The experts will then be conferenced with. If the expert feels that there was negligence and the negligence caused damages, it is at this point the case will be accepted by our firm for handling and litigation. If the expert feels that there is no negligence, the potential client will be so informed and we will then discuss where to go from that point. Many such cases are declined and some are sent out for a second opinion.

Up to this point, the potential client does not owe us ANY money whatsoever. If we decline the case, even if after an expert review, the potential client will owe us nothing. If we accept the case for litigation, we will forward the potential client a Legal Services Contract for their review and signature. It is our obligation to fully explain the contract to the potential client. We will happily do so. Our contract is a contingency fee contract as approved by the Florida Bar. On certain types of cases, depending on the risk, we may require a specific fee agreement that requires Court Approval. If we make a recovery, clients are responsible for attorney fees, attorney costs, and reimbursement of medical liens related to their case. We will discuss this with the potential client and fully explain the same. Once the contract is signed by the potential client, a copy will be sent to your office for signature. Once returned to us, an executed copy is then sent to all parties.