Medical malpractice is the improper treatment by a physician or health care provider that results in injury, damage, or harm to the patient. The medical professional does not have to plan or intend to do harm; instead, it is an error that causes harm. In the state of Florida, improper treatment is referred to as a breach of the “professional standard of care.” Under the statute, the standard of care is defined as the level of treatment, skill and care that is acceptable and reasonably appropriate to other health care professionals.Malpractice applies to all types of physicians, including specialists as well as hospitals, nurses, and alternative health providers.
The Complexity of a Malpractice Claim
Filing for medical malpractice is very complicated. Over the years, legislation has constantly made it more difficult for injured patients to seek retribution or even hold hospitals and physicians accountable for their errors. This is why it is imperative that victims contact an attorney that understands medical malpractice claims.
- The statute of limitations. A statute of limitations is the maximum time an injured party has to file their lawsuit. In the state of Florida, medical malpractice claims experience a shortened limitation. The standard statute of limitations for negligence claims is four years, but for medical malpractice, victims have only two years from the date that they discover the error (or should have been aware of the error) or the date the injury occurred. Also, the statute states that the medical provider (unless guilty of fraud or misrepresentation) cannot be sued more than four years after the actual incident – regardless of whether the plaintiff knew of the injury or not.
- Presuit requirements. To file a lawsuit, the plaintiff must follow strict presuit requirements. If these requirements are not followed, the plaintiff will be barred from filing their suit. First, an attorney must conduct an investigation to determine if a valid claim is present. Then the attorney must gather medical records and have a medical expert, of similar specialty to the defendant, review those records. The expert must then attach a “verified written medical expert opinion” stating that they feel the medical professional breached their duty of care. Next, the attorney must file a notice of intent to initiate litigation. After that, there is a 90-day presuit investigation period that allow both parties to exchange questions, information and further build their case.
- ERISA and HMO issues. Florida has specific HMO provisions that can actually protect HMOs from lawsuits. Under the federal ERISA law, patients are allowed to bring a complaint against their HMO, but after a legislation was passed in 2003, patients are limited as to what types of claims they can bring against their HMO in Florida – which further complicates the claims process.
Navigate the Complexities of a Medical Malpractice Claim with an Attorney
As an injured patient, you should not have to learn the law or attempt to navigate through the requirements of a medical malpractice claim. Instead, contact a Daytona medical malpractice attorney at Vasilaros | Wagner. We will help explore your legal options and aggressively protect your right to compensation under the law. Call us at 386-777-7777 or fill out an online contact form to speak with an attorney.