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The Steps to Take When Your Medical Professional Doesn’t Do Their Job

Jeffrey R. Davis

Medical Malpractice occurs in the United States more often than we think. According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the U.S.— right behind heart disease and cancer. If medical malpractice itself does not lead to death, it can lead to health complications, extensive medical expenses, emotional harm, and financial ruin. If you or a loved one has been a victim of healthcare provider negligence, here are some steps you can take:

1. Consult with a medical malpractice attorney.

  • Nearly all attorneys that are competent to handle medical negligence cases will offer a free consultation to discuss your case and review your records. Medical malpractice claims have a unique set of rules, standards and procedures in Florida. To properly present and try medical malpractice cases in Florida, an attorney must be thoroughly familiar with the specialized time frames and requirements. These types of cases are almost always contested and frequently involve litigation that ends up in trial.

2. Identify if you have a medical malpractice case.

  • Medical malpractice occurs when a healthcare professional falls below the standard of care. This negligence can be through omission or commission. It is actionable when it causes injury to a patient. This may be because of errors in diagnosis, management, treatment, aftercare or failure to refer to the appropriate specialist.
  • Medical malpractice is not often easy to identify. While there are obvious cases such wrong-side surgeries or foreign objects left behind after a procedure, most medical negligence cases require identification by an independent healthcare provider. An attorney that is familiar with medical malpractice cases will often have expert witnesses that can review medical records and studies in order to determine if malpractice occurred.

3. Collect all the documents that you need for your case.

  • Florida law requires the healthcare provider to turn over patient’s records to the patient or his/her representative with a proper written authorization. Patient’s records belong to the patient – not the healthcare provider. A reasonable copy charge is allowed. An attorney familiar with medical malpractice cases will have the specialized forms and materials to obtain patient’s medical records, charts, films and studies in order to have them evaluated and reviewed.

4. Should a patient discuss medical malpractice with the at-fault doctor.

  • This is a tricky issue. In my firm, we advise our clients not to discuss the case with the at-fault doctor. There are some situations where the patient has a limited or specific role where such contact would be appropriate. In a situation where they want the offending doctor to pay for or repair a limited aspect of damage (for example, broken tooth or simple scar revision), than the direct approach may be appropriate. In a more complicated situation involving significant and permanent injury, it is very unlikely that the offending practitioner will deal directly with the patient outside of the procedural formalities of a medical malpractice claim. The same holds true with the patient speaking to his/her other doctors about their medical malpractice case. Most physicians do not wish to get involved in a claim against a fellow local doctor. That is just an unfortunate reality; however, there are exceptions. If often makes more sense to allow your attorney to conference with the other physicians or subsequent treating doctors to see about their willingness to assist or participate in the case.

5. Should I file a complaint with the Board of Medicine or Agency for Healthcare Administration.

  • In many instances, your attorney will contemporaneously initiate an administrative claim against an at-fault physician. There are ethical, societal and strategic considerations to commencing these administrative types of actions. Frequently, lawyers are required to provide a copy of a lawsuit against a healthcare provider to a governing medical board. Your attorney will discuss the pros and cons of commencing an administrative investigation against the healthcare provider or facility.

6. Time in which to initiate a Medical Malpractice case.

  • Florida has a shortened statute of limitations for medical malpractice cases. Typically, it is generally two (2) years from the date of the occurrence. There are exceptions to this rule that allow greater lengths of time and this aspect of your potential claim is usually one of the first considerations that your medical malpractice attorney will evaluate. Timeframes in the presentation of a medical negligence cases are frequently staggered with different timetables occuring at various case phases. Also, different types of defendants (private vs. public) have different claim presentation deadlines. It is essential that your attorney be thoroughly familiar with the exact timetable of events in your case in order to accurately chart the notification and filing deadlines that are unique to your case.

7. Get a medical assessment from another healthcare professional to make sure your case has merit.

  • Florida law requires that a case be reviewed by a healthcare provider of the same specialty (or licensing chapter) to determine whether or not there has been a departure from the standard of care. Other than in rare circumstances, this is a mandatory requirement in every medical malpractice case in the state of Florida. The reviewing healthcare provider must prepare a sworn statement, usually in affidavit form, concluding, upon proper review that medical negligence has occurred. In some states, this is referred to a Certificate of Merit. It is an important step to the presentation of a claim and can take months to obtain. For this reason, we urge our clients not to delay getting a case reviewed.

8. Find a qualified, experienced Medical Malpractice lawyer.

  • Only a small percentage of Florida’s more than 100,000 lawyers handle medical malpractice cases. This particular type of case is unique for a number of reasons. First, it requires an enormous investment of time and money. It can cost hundreds of thousands of dollars to successfully present a medical malpractice case to a jury. It requires the attorney to be thoroughly conversant with medical records, medical terminology, anatomy and physiology. A medical malpractice attorney must have the ability to not only identify and locate the correct type of expert, but also to make sure the expert has all the necessary materials to review. Medical malpractice cases are typically litigated by seasoned and experienced medical malpractice lawyers that are intimately familiar with the intricacies of Florida’s complicated medical malpractice statutes, rules and ever changing case law. Medical malpractice cases are fraught with minefields, traps and hidden deadlines. Before you decide to hire an attorney, make sure she or he has experience handling medical malpractice cases. At Jeffrey R. Davis, P.A., we pride ourselves on being selective when choosing cases that have both merit and justifiable damages. We believe that our clients deserve our full and complete attention. We spare no expense selecting highly-credentialed experts that are thoroughly familiar with the specific medical issue to best enable our client’s case to be presented to a jury.

If you or someone you know has a case that you believe involves a medical error, please contact Jeffrey R. Davis, P.A. (305) 577-3777 for a free consultation. We handle cases throughout the state of Florida and are available on a 24/7 basis. We are bilingual and have been representing Plaintiffs in medical malpractice cases for more than 30 years.

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