Your Orlando Medical Malpractice Case: The Basics

You were expecting your right knee to be throbbing upon waking from anesthesia, so why did your right knee feel fine while your left was swollen to the size of a grapefruit? Nervous looking nurses dull your pain the best they can, and you even remember a local hospital doctor in Orlando apologizing profusely for the error through the fog of morphine. You never thought it could happen to you, but you've become a statistic, just one among the many injured as a result of surgical errors by healthcare professionals in the operating room. To help provide a starting point, FindLaw has created this guide to a typical Orlando medical malpractice case.

Medical Negligence

Most medical malpractice cases are essentially negligence cases where a health care professional is the defendant. Medical malpractice liability can come from the doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. To find a medical professional negligent, you must show that his or her conduct fell below a generally accepted standard of medical care, and that this failure caused your injuries.

As you'd expect, doctors are expected perform medical procedures with a great degree of skill and professionalism. Generally, doctors must recommend and perform treatments as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

Proving Malpractice

The first step to proving malpractice is demonstrating exactly what the expected standard of care was under the circumstances. One must then detail how the medical professional's actions failed to meet this standard in performing the treatment. However, the medical knowledge of most judges and jurors is extremely limited, which makes an experienced expert witness in the applicable medical field all but essential.

Since these cases often become quite technical, consulting with an experienced medical malpractice or personal injury attorney may be a good idea. Lawyers in these fields almost universally work on a contingency fee basis, which means that instead of paying them up front, they take a percentile of your ultimate recovery.

Informed Consent

Another type of lawsuit directed at medical professionals is when a doctor fails to obtain informed consent from his or her patient before a treatment. Before any treatment can be performed, a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's consent. There are three general components to informed consent:

  • a disclosure informing the patient all the risks, benefits and alternatives of the treatment;
  • comprehension of the disclosure by the patient, and;
  • a voluntary (non-coerced) waiver or "release," executed by the patient.

If any of these components was lacking, the doctor may be sued under battery theory, for an intentional, harmful or offensive contact that a patient did not consent to.

Time Limits

In Florida you have two years to initiate your medical malpractice lawsuit. If you have not filed your lawsuit within two years of the date of malpractice, you may lose the right to recover forever. This so-called statute of limitations prevents plaintiffs from dragging defendants into courts for ancient injuries, where all memory and evidence has since vanished.

However, some injuries caused by malpractice aren't obvious, so the statute is tolled (put on hold) for the time it takes to discover the injuries and their cause. The Florida "discovery of harm" rule gives you two years from the date you discovered, or reasonably should have discovered, the injury, up to four years from the date of the incident. Note that this limit does not apply to children under eight years old.

Who to Sue

You may be able to sue both the doctor who acted negligently and the hospital that employs him under the doctrine of "respondeat superior," which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.

A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

Some may bring a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that they were not made aware of, or against the company that designed or manufactured a defective medical device.

Damages

Successful plaintiffs in personal injury cases, such as medical malpractice, will be awarded monetary compensation to relieve them of any unfair financial burdens they've suffered. These "economic damages" can be easily computed into dollars and cents, and typically include medical bills and loss of income. There is no upper limit to the amount of economic damages you may recover.

While pain has no price, juries reimburse injured patients for the pain and suffering they've endured with money on a regular basis. These "non-economic damages" are designed to compensate you for the mental and physical distress you suffer as a result of your injury, for example loss of enjoyment of life, fear and anxiety, sleeplessness, scarring or disfigurement.

Florida places an upper limit on the amount of non-economic damages you may recover in a medical malpractice lawsuit. Specifically, Florida utilizes different caps for "medical practitioners" versus "non-practitioner" defendants. There is a $500,000 cap on non-economic damages in medical malpractice lawsuits against practitioners, while the cap jumps up to $750,000 in lawsuits against non-practitioners. However, there are exceptions to this cap, such as when a patient suffers a catastrophic injury or is left in a permanent vegetative state. For more information, or questions specific to a particular case, you may wish to contact a local medical malpractice attorney.

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