Miami, FL Medical Malpractice Attorneys
Serving Miami, Florida and Nationwide
FIGHTING FOR THE SAFETY OF YOU AND YOUR FAMILY
As a society, we place a large amount of trust on doctors and healthcare professionals to take care of us during times of illness and injury. This trust is based on the fact that medical professionals spend many years learning and crafting expertise in specific fields so that they can accurately and effectively diagnose and treat individuals safely. Unfortunately, medical malpractice happens all too often as mistakes occur and human error can cause you or a loved one significant injury.
According to statistics posted on the American Association for Justice, there are 98,000 preventable deaths each year that happen due to medical malpractice. There are also many more patients who are injured because of negligence on the part of a medical professional. It’s important to seek legal help immediately if you feel you've been a victim of medical malpractice as these cases can cause you and your family undue physical and financial pain and suffering.
At the Hickey Law Firm, P.A., our medical malpractice trial attorneys have the knowledge and experience to help get you the settlement you deserve. Please contact us online or call us at 855-375-3727 for a free case evaluation today. We proudly serve clients in the Miami, Florida area and nationwide.
- What is Medical Malpractice?
- Types of Medical Malpractice
- Injuries from Surgical Errors
- Injuries from Prescription Errors
- Birth Injuries
- Your Rights as a Patient
- Compensation You May Receive
What is Medical Malpractice?
Medical malpractice takes place when an individual who seeks medical help is harmed by a doctor, or another medical professional, who doesn’t perform his or her duties to the level that is expected. This can happen by the action, or inaction, of a medical professional that results in personal injury.
This type of case can be complicated, in that negligence on behalf of a medical professional does not necessarily equate to medical malpractice. There are certain basic requirements for proving malpractice occurred for a successful claim. That’s where our experienced attorneys can help. The basic tenants of malpractice that we can help you with include:
- Showing a doctor-patient relationship existed: You must show that you, or the victim, had a relationship with the medical professional that caused the injury. You must have hired the doctor or have been treated by the medical professional. A consulting physician who did not treat you can raise questions of whether a relationship existed.
- The medical professional was negligent: To successfully pursue a malpractice claim, you must show that the medical professional acted negligently in your diagnosis or treatment. Nearly all states require that the patient have a medical expert confirm that the negligent party deviated from the appropriate “standard of care” for healthcare professionals.
- The negligence caused the injury: The burden is placed on the patient to prove that the doctor or medical professional’s negligence is what caused the injury. They must show that it is more likely than not that the doctor’s negligence directly caused the injury. A medical expert can testify to this as well.
- The injury led to damages: Even if a doctor or healthcare professional acted negligently, a patient cannot pursue a malpractice claim if no injury or harm occurred. Examples of damages patients can pursue compensation for include physical pain, mental anguish, additional medical bills, disfigurement, scarring, and lost work and earning capacity.
All states have a statute of limitations for when a patient can pursue a medical malpractice claim. In the state of Florida, one must file a claim within two years of the date in which the injury resulting from the negligence occurred. There is also a blanket deadline of four years from the date of the alleged malpractice and a period of a two-year extension if fraud is involved. Our experienced medical malpractice attorneys can help you navigate the specifics of Florida’s statute of limitations.
Types of Medical Malpractice
Doctors’ “standard of care” is taught as the minimum required in order to treat each patient. A typical definition of standard of care is “the type and level of care an ordinary, prudent, health care professional, with the same training and experience, would provide under similar circumstances in the same community.”
There are many ways in which a doctor or medical professional can deviate from the standard of care and cause you harm through their negligence. The three main types of medical malpractice that can cause injury which include:
- Misdiagnosis: This happens when a doctor or medical professional doesn't discover the patient’s illness or concludes a wrong diagnosis which leads to further injury, illness, or death.
- Improper treatment: This can occur when a medical professional does not treat symptoms as another competent doctor would, or if the doctor or medical professional administers the appropriate treatment incorrectly which results in a negative outcome.
- Failure to warn of risks: Medical professionals have a duty to adequately warn patients of known risks of procedures, treatments, and medications known as the duty of informed consent. If this duty is not performed and a patient is injured from the treatment, a medical malpractice suit may be filed.
As mentioned above, there are many types of injuries that can occur due to the three types of medical malpractice, such as a doctor leaving an instrument in a patient’s body during surgery to failing to tell a patient about side-effects for certain medications. In the sections below we’ll touch on a few of these injuries and the serious effects they can have on you and your family.
Injuries from Surgical Errors
Surgeons and those who assist them have undeniably difficult jobs. The law recognizes that surgery is a complicated, sensitive endeavor and that a tragic outcome is not always cause for a medical malpractice claim. However, the fact remains that a patient is intensely vulnerable during surgery. You’re putting your life in another person’s hands and that means the surgeon and his or her team carry significant responsibilities.
As with all medical malpractice claims, claims regarding surgical errors revolve around the concept of standard of care. Unfortunately, preventable surgical errors kill thousands of Americans every year. The difficulty of major surgery does not mean that it’s impossible to hold surgeons and other medical professionals accountable for their mistakes.
Common examples of surgical errors include:
- Anesthesia errors
- Amputation of the wrong limb
- Unnecessary damage to surrounding tissue, ligaments and nerves
- Surgical instruments left in patients
The above are examples of unacceptable mistakes which often prove fatal to innocent patients. We can help you if you were injured or if you lost a loved one due to an avoidable surgical error. Our lawyers are skilled at looking into these cases and determining if you have a reasonable claim.
Injuries from Prescription Errors
When a pharmacy incorrectly fills a prescription, this error can be extremely serious. At the Hickey Law Firm, we have decades of experience with medical malpractice cases against drug producers, distributors, and pharmacies that make mistakes when distributing prescriptions.
There have been times where the cases were due to the inexperience and negligence of a pharmaceutical assistant as well. Sometimes, these assistants are untrained and unlicensed, and their lack of experience was the basis of a labor dispute case between Walgreen's and its unionized pharmacists in Illinois.
Your pharmacist has a duty to ensure that the prescriptions you are receiving are not only in accordance with what your physician prescribed, but also to double-check the prescription for reactions with any of your other medications. Your pharmacist should also give you a general description of your prescription and its application, side effects, and warnings. Failure to do these things, along with several other mistakes can lead to severe, if not fatal side effects.
Our Miami lawyers have encountered many breaches of duty on the part of pharmacies, including the following:
- Inadequate training
- Lack of prescription review, resulting in mistakes
- Pharmacy rushing to complete orders and making mistakes
- Failure to establish and maintain an appropriate “continuous quality improvement program” as required by Florida Administrative Code 64B16-27.300
- Failure to call the physician or have the physician called to clarify the amount of the dosage of the prescription
- Failure to counsel the patient or the patient’s agent about the dosage in violation of Florida Administrative Code 64B16-27.820
- Failure to interpret and assess the prescription order for potential adverse reactions, interactions, and dosage regimen
In Florida, the pharmacy and the pharmacist have a duty of due care which arises under Florida case law and under the Florida Pharmaceutical Regulatory Statutes and Administrative Code. In addition to the pharmacist's duties to provide an exceptional level of care, the pharmacy is equally responsible for the care of its patients.
The process of giving birth can be a painful, uncomfortable, and anxiety-inducing experience. We trust doctors and other medical professionals to keep our children safe as they're brought into the world. And there's no doubt that most of them are caring, conscientious professionals who strive to do their best for your child.
However, the fact remains that these professionals, no matter how well-intentioned, can make mistakes. And when medical malpractice occurs during child birth, your new child can suffer an injury that lingers for the rest of his or her life.
Birth injury cases, like all medical malpractice claims, revolve around standards of care. The fact that a birth injury occurred is not, in and of itself, evidence of medical malpractice. Instead, you must demonstrate that the medical professional in question violated a widely accepted standard for treatment or diagnosis, and in doing so, caused your child's injury.
We have significant experience evaluating potential cases and determining if there's a viable claim. Common birth injuries include:
- Erb's palsy
- Cerebral palsy
- Damage to the limbs
- Lack of oxygen, causing brain damage and other injuries
This is not an exhaustive list, but it provides a sound foundation for understanding the seriousness of these injuries. The tragedy of a birth injury is that its effects are not just short-term in nature.
Many birth injuries simply cannot be treated and your child will be dealing with them for the rest of his or her life. They'll have to deal with the pain, discomfort, and inconvenience of the injury, but the injury can also dramatically hurt your child's ability to work and earn a living. This is why it's so important to vigorously pursue compensation after a birth injury.
The patient has to consent to the treatment or procedure.
A patient has a right to receive the treatment or procedure for which he or she has consented to receive. Put another way, the physician and health care provider are required to obtain the consent of the patient for all of the treatment and for all of the procedures which that provider intends to provide or perform. That seems easy and clear. But the consent has to be “informed”. That is, the doctor or someone at the clinic or hospital has to inform the patient about what the procedure is and what the likely or possible consequences are. There are at least 2 issues which arise. First, the patient has to understand the procedure itself (for example, is it cutting off of an arm or is it a small incision where a scope is inserted), the likely consequences of the procedure (for example, will this require hospitalization and therapy or no overnight stay in a hospital), and the possible complications of the procedure (for example, you could lose your life, become paralyzed, etc.). And the doctor or other provider needs to explain these to you. They should not only provide a form to you with this written but also have a conversation about it and allow you to ask questions. That is why the physician should participate in the consent process; to be there to explain and answer questions.
In Florida, there is a statute which governs the consent process or a portion of it. That statute is Florida Statute Sec. 766.103. This is known as the “Florida Medical Consent Law”.
The Florida Medical Consent Law statute does not apply where the Good Samaritan Act applies. The Good Samaritan Act, Florida Statute Sec. 768.13 is where someone presents at the emergency room and is in and continues to be in a life threatening situation and is not stable. It provides, in relevant part, as follows:
766.103 Florida Medical Consent Law.—
(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced practice registered nurse licensed under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when:
(a)1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and
2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or
(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced practice registered nurse, or physician assistant in accordance with the provisions of paragraph (a).
(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.
(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.
History.—s. 11, ch. 75-9; s. 21, ch. 85-175; s. 1150, ch. 97-102; s. 62, ch. 97-264; ss. 230, 297, ch. 98-166; s. 2, ch. 2007-176; s. 11, ch. 2016-145; s. 78, ch. 2018-106.
Note.—Former s. 768.132; s. 768.46.
In other words, for the consent to be valid, it absolutely has to be “ in accordance with an accepted standard of medical practice” and has to comply with one of 2 other requirements. What is consent “in accordance with an accepted standard of medical practice”? That is what a physician should testify to. What is acceptable in the community and what is the standard of care?
The other requirement for consent is that the patient understand the treatment or procedures or if the patient did not understand the treatment or procedures, that he or she would have undergone the treatment or procedures if he or she had understood it. So, if the patient testifies and the jury believes that they did not reasonably understand it and that if they had understood it they would not have undergone the procedure, the consent is not valid.
There is a situation now in some hospitals, surgery centers, clinics and offices. The consenting is being made by a clerical person at a desk where the insurance information and any payments are made. That same clerical person consents the patient. But the clerical person is not a physician and not trained and does not know enough to answer questions. So if the writing is confusing, inaccurate, or ambiguous, if it just does not answer all of the questions someone has, the questions do not get answered. The likelihood that most people will insist on seeing the doctor and actually getting in to see the doctor within a few minutes, that is, without a multi hour wait, is between slim and none.
And then there is the problem that the facilities do not provide any real access to the consent forms. That is, the clerical person at the desk where the consent is really done asks for signature on a digital 4” x 5” touch screen pad. But the document which you the patient supposedly is signing is not on the pad. And it is not even on any screen in front of the patient. Sometimes, it is on a screen in front of the clerical person, 5 feet away and unreadable to anyone but Superman. We have seen it where the patient is given a binder with a hard copy of the forms. But it is not clear which form, if any, goes with which signature. The signatures are on a touch screen separate from the document. So what is the patient consenting to? How can that be informed consent when the person behind the desk is a clerk? And how can the consent be valid if the patient never really had access to the consent form?
Compensation You May Receive
Injuries resulting from medical malpractice can have devastating effects on you and your entire family. Because of the serious injuries that can occur, you may need rehabilitation or expensive additional, unexpected medical bills can saddle your family with unwanted debt. When your injury is caused by the negligence of a trusted medical professional, you deserve justice and fair compensation to take that financial burden off your shoulders and bring some peace of mind to your loved ones.
Regardless of what types of injuries you sustained, our goal is to get compensation for you. We will fight to recover damages for:
- Additional medical expenses
- Physical and emotional therapy
- Lost wages
- Diminished earning capacity
- Pain and suffering
- Funeral expenses (wrongful death cases)
Contact Our Experienced Florida Medical Malpractice Attorneys Today
It’s difficult to determine if a given case qualifies as medical malpractice or is, instead, simply a tragic case that is not legally actionable. Our Miami medical malpractice lawyers understand the difference. They know the relevant standards of care and are always open and up-front with you about your case.
If you need an experienced medical malpractice lawyer, please call the Hickey Law Firm, P.A. today at 855-375-3727 or contact us online for a free consultation. We proudly serve clients in Miami, all of Florida, and nationwide.