Professional Malpractice

We trust that when our loved one becomes ill or requires medical care, doctors and other health care professionals will adhere to the highest standards in treating them. Unfortunately, this is not always the case.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our experienced wrongful death lawyers recognize that the consequences of professional malpractice can result in severe injuries, permanent disability and even death. We have extensive experience in handling the complex litigation that results from medical malpractice.

Unlike claims of general negligence, those pertaining to medical malpractice are governed by strict guidelines for notification, filing, statute of limitations and standard of proof. Even when negligence is clear, the cases are often complicated, and expert witness testimony is required.

Families who have suffered the devastating loss of a loved one as a result of medical malpractice deserve top-level legal representation, and we are committed to providing it at every phase of litigation.

Medical malpractice is a form of negligence by a health care provider that results in injury or death.

F.S. 766.102 defines medical negligence, the standards of recovery and requirements for expert witnesses. In these cases, it is not enough to prove a patient suffered a poor outcome in the course of receiving medical care. Plaintiff has the burden of proof in these cases to show by greater weight of evidence that the doctor or health care provider’s actions were a breach of the “prevailing standard of professional care for that health care provider.”

The law defines professional standard of care as the level of care, skill and treatment that, in light of all material circumstances, is the appropriate and acceptable standard considered reasonably prudent by similarly-situated health care providers. That means plaintiffs have to prove the outcome was not within the necessary or foreseeable results of medicinal, diagnostic or surgical procedure.

Essentially, it’s what other doctors, nurses, dentists, diagnostic lab specialists would consider appropriate action when faced with the same situation.

Some examples of medical malpractice include:

• Errors in anesthesia
• Mistakes during child birth
• Undiagnosed or misdiagnosed disease or condition
• Failure to treat a condition
• Unnecessary treatments
• Errors in surgery

Rules are slightly different for those providing emergency care, per F.S. 768.13, also known as the “Good Samaritan Act.” This does not mean paramedics or emergency room doctors and nurses can’t be held accountable for the care they provide, but it does mean they won’t be judged by the same standards as a health care professional who has ample time, proper medical equipment and other resources that might otherwise be available in a non-emergency situation.

In general, the main elements that must be proven in a medical malpractice wrongful death lawsuit include:

• The medical professional breached the applicable standard of care;
• The breach proximately caused or contributed to your loved one’s death;
• The death has caused you and/or your family to suffer damages (financial and emotional).

In order to prove medical negligence, a similarly-situated expert witness – and sometimes several expert witnesses – will be required to attest to the applicable standard of care and breach. The law requires the expert witness to be someone who holds and active and valid license in that same field, and he or she must also have conducted a complete review of relevant medical records. The full scope of extensive requirements for expert witnesses is listed in F.S. 766.102(5)-(11).

In 2003, the legislature enacted a law designed to lower malpractice insurance costs, and capped medical malpractice damages in wrongful death cases at $1 million. Medical malpractice claims resulting in injuries were capped at $500,000.

While the latter remains in effect (as of this writing), the Florida Supreme Court in 2014 struck down the noneconomic damage cap pertaining to medical malpractice resulting in wrongful death. In a 5-2 ruling in McCall v. U.S., the majority asserted the cap is a violation of the Equal Protection Clause of the Florida Constitution per the rational basis test when there are multiple claimants. (The decedent in the case was a woman who died giving birth; the jury awarded $2 million for her son and parents, but the total amount was reduced by half due to the statutory cap.)

What the new decision means is rather than capping the non-economic damage awards at $1 million, it is now in the hands of jurors to decide how much should be awarded for pain and suffering when an act of medical negligence affects multiple people.

Ultimately, the total recovery in medical malpractice wrongful death claims will depend on a host of circumstances. The best way to maximize recovery is to hire a legal firm with extensive experience in handling such claims.

Contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.

Call 800-646-1210 for a Free Consultation