Medical Malpractice by the Numbers
Deaths Due to Medical Error Each Year
Malpractice Claims Paid in Florida (2018)
Total Payouts for Malpractice Claims (2019)
The Increasing Harms of Medical Malpractice
Each and every year millions of Americans see physicians, doctors, therapists, chiropractors, and other medical professionals to help treat what ails them. We trust doctors, nurses, and hospitals to care for us at our most vulnerable moments. And yet for too many patients the cure ends up being worse than the disease.
Misdiagnoses, surgical errors, overmedication, and anesthesia mistakes can all cause serious harm or even death to a patient. The best studies we have as to the severity of the problem show that it is both wide ranging and underreported. In fact, a bombshell report from Johns Hopkins University in 2016 argued that medical errors may be responsible for over 250,000 deaths each year, making medical error the third leading cause of death in the U.S.
Despite these shocking statistics on the rates and effects of medical malpractice, data show that the number of malpractice lawsuits is declining. In 2001, there were just over 16,000 paid medical malpractice claims against MDs and DOs in the U.S. By 2016 that number had dropped nearly 50% to below 8,500.
If we zoom in on Florida, we can see that this problem is by no means new. Public Citizen issued a comprehensive report in 2002 that has a couple of startling facts:
- Already in 1999, an Institute of Medicine study (“To Err Is Human”) had concluded that “at least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors,” and the costs attributable (in 1999-dollars!) to medical errors are “estimated between $17 billion and $29 billion.”
- From 1996–1999, the dates covered by the study, Florida hospitals reported 19,885 malpractice incidents but only 3,177 malpractice claims. This means the ratio of medical malpractice incidents to medical malpractice claims is 6 to 1.
As the state’s population and number of licensed physicians has grown, this problem has only gotten worse. Hard-nosed insurance companies coupled with stringent Florida medical malpractice laws make bringing a medical malpractice lawsuit difficult.
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What Is Medical Malpractice?
What we refer to generally as “medical malpractice” encompasses a wide array of acts or failures to act. At its core, however, medical malpractice refers to professional negligence by a healthcare provider whose treatment fell below the accepted standard of care and thus caused harm, injury, or death to a patient.
Intensive care units, operating rooms, and emergency departments all have high error rates with serious adverse effects, but preventable medical errors can happen in any specialty during even all manner of procedures, including:
- Missed diagnosis or failure to properly diagnose (e.g. stroke or heart attack)
- Misreading of X-ray, MRI, ultrasound, or other diagnostic test
- Failure to make request for specialist consultation, referral, or transfer
- Improper surgical techniques
- Operating on the wrong body part or wrong site
- Anesthesia mistakes
- Leaving foreign object in the body
- Improper post-op procedures
Hospitalization and Care Facilities
- Restraint-related injuries
- Falls from improper bed rails or restraints
- Pressure ulcers or bed sores
- Mistaken patient identities
- Failure to order the proper tests
- Defective medical devices
- Unnecessary testing or treatment
- Tests you did not consent to
- Adverse drug events
- Dangerous drugs
- Prescribing wrong medications or conflicting medication
Florida Medical Malpractice Laws
Medical malpractice cases are some of the most complex and labor-intensive cases a personal injury lawyer will ever handle because of the extremely strict guidelines that must be met before the case can be filed and for a patient to have any chance of prevailing in court.
In Florida, medical malpractice is defined in section 766.102, Florida Statutes. These statutes favor the medical providers and insurance companies over the patients, so working with an experienced and qualified medical malpractice attorney is critical to a successful outcome.
Pre-Suit Investigation to Determine “Good Faith”
Before filing a medical malpractice lawsuit on a client’s behalf, medical malpractice attorneys are required by law to conduct a pre-suit investigation including collecting sworn affidavits from specialists in the same medical field as the defendant. The purpose of this investigation is to certify that there is a “good faith belief” that the medical provider acted negligently as well as to encourage parties to settle claims without a lawsuit.
Pro Tip: Lawyers will take this good faith certification very seriously. If the court finds that the attorneys did not make the certification in good faith, then the court will award the opposing side’s attorney’s fees and costs against them personally and will refer them to The Florida Bar for disciplinary review.
Florida Statute of Limitations for Medical Malpractice
The statute of limitations for medical malpractice lawsuits in Florida is 2 years. However, because medical injuries are not always apparent at first, the 2-year timeclock starts running either at:
- The occurrence of the injury, or
- The discovery of the injury.
At most, however, a victim has four years from when the malpractice occurred to initiate a medical malpractice lawsuit. Adhering to the statutes of limitations is critical, and you should discuss with your medical malpractice attorney what the exact timeline is in your case.
Pro Tip: There is one exception to this rule: Fraud! If the healthcare provider intentionally hid their medical malpractice from you, the statute of limitations is 2 years from the discovery of the injury or 7 years from the occurrence of the medical error.
Finally, the 2-year statute of limitations for medical malpractice cases does not apply to minors. Also, if the malpractice resulted in a wrongful death, the 2-year wrongful death statute of limitations comes into effect.
What Makes a Successful Medical Malpractice Lawsuit?
As we noted above, medical malpractice lawsuits are time consuming and often some of the most difficult cases lawyers will take on. They are very fact intensive and require numerous expert witnesses.
Fundamentally, there are four elements that are key to a successful medical malpractice case:
Establishing a legitimate patient-doctor relationship
Proving that the physician neglected to provide a reasonable standard of care
Showing the negligence directly led to the patient’s injuries, illness, or death
Confirming that the patient suffered damages as a result of this negligence
When we decide to take on a new medical malpractice client, we put all of our energies into proving these four key elements. Our team takes a multi-prong approach that includes:
- Reviewing your medical records and other accompanying documentation,
- Working with qualified medical experts,
- Documenting the ways that the medically accepted standard of care was not met,
- Deciphering how the provider’s negligence directly caused your injuries.
What Damages Are Recoverable in a Medical Malpractice Lawsuit?
As with other personal injury lawsuits, recoverable damages from medical malpractice lawsuits fall into three categories.
These are monetary losses that the victim has incurred in the past or will incur in the future. Economic damages are typically concrete and easily proven, such as medical bills or lost wages.
More often referred to as “pain and suffering” damages, noneconomic damages cannot be easily quantified. Pain and suffering is a broad category that covers mental anguish and inconvenience, loss of parental guidance, loss of spousal affection, and emotional distress.
As the name suggests, punitive damages exist solely to punish the wrongdoer and to deter others from similar bad behavior in the future. They are only sought in cases of egregious conduct.
Damage Limit Caps for Medical Malpractice in Florida
By and large, Florida does not have caps for economic damages. If the injured party can prove that they have suffered economic losses, the negligent party must pay for the full value of those losses, however large the price tag.
In most personal injury lawsuits, the largest recovery amounts are in noneconomic damages, or from pain and suffering. Unfortunately, pain and suffering damages in medical malpractice cases are a very thorny issue in Florida.
Are There Caps on Noneconomic Damages in Medical Malpractice Cases?
The Florida laws governing noneconomic damages caps for medical malpractice cases have a long and tortuous history dating back to 2003. The worst part about their storied past is that the current status of the noneconomic damages caps is still in flux.
Florida passed legislation setting caps on noneconomic damages at $500,000 (or $1m for wrongful death). These statutes were in effect and untouched until 2014.
The Florida Supreme Court ruled that these caps were unconstitutional, but only in wrongful death medical malpractice cases.
The Florida Supreme Court extended this 2014 ruling to all noneconomic damages in medical malpractice cases (N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49 (Fla. 2017)).
Despite the court ruling these caps unconstitutional, the relevant Florida laws remain unchanged. If you seek out the official Florida statutes, you will find that the pre-2014 damage caps on noneconomic damages are still listed (Fla. Stat. §766.118(2)-(6)).
In short, despite the various rulings and hubbub, it is likely that noneconomic damages in your medical malpractice lawsuit will be capped at $500,000 for medical practitioners.
Pro Tip: An entirely different set of provisions govern Medicaid recipients and their noneconomic damages are capped at $300,000. Additionally, Medicaid recipients must prove a practitioner acted in a “wrongful manner” (i.e. bad faith or with malicious intent), a standard above other malpractice cases.
Why You Should Hire a Medical Malpractice Attorney
If you are here, chances are that you or someone you love has suffered due to medical error or medical malpractice. We are truly sorry that you are going through this, and we sincerely hope that you and your family recover and that you can return to your normal lives as soon as possible.
We also want to help you make smart decisions about your case so you can choose the right medical malpractice lawyer and get on the path to full recovery—both emotionally and financially. Filing a medical malpractice lawsuit is extremely complex, and without a dedicated medical malpractice attorney on your side, victims often don’t recover the full amount of damages to which they are entitled. When thinking about hiring a Boca Raton lawyer for your medical malpractice lawsuit, keep a few points in mind:
Insurance companies see it as their job to avoid paying you
They have teams of highly trained adjusters and lawyers—and very deep pockets—all focused on keeping your claim as small as possible. You need someone in your corner, who also has experience and training, to take on the insurance company.
The insurance company’s bag of tricks is ineffective on a legal expert
By hiring a personal injury attorney, you force the insurance company to deal with an experienced legal professional who won’t be coerced or fooled into taking a low-ball offer. You will significantly increase your chances of recovering just compensation and of achieving a favorable resolution to your case.
Your peace of mind is critical for recovery
You or someone you love is suffering from injuries that are not your fault! Worrying about collecting medical records, conducting a pre-suit investigation, and responding to insurance companies is only going to make your physical and emotional recovery take longer. Having a personal injury lawyer represent you means that you aren’t filing motions, taking statements, or conducting depositions. You can focus on recovering from your injuries.
If you believe that medical error or physician malpractice has caused you pain and suffering, you need to seek out an experienced Boca Raton medical malpractice attorney who will guide you through the claims process. The doctor, hospital, and insurance company will have attorneys and insurance adjusters on their side to protect their interests—so should you.
The lawyers here at Personal Injury & Accident Law Center would love to speak to you about your case and tell you how we can help you get on the path to recovery. Call us today at (561)372-3800 to schedule a free case evaluation or fill out the confidential form below and a team member will contact you soon.