John B Cechman Personal Injury in Fort Myers GBCR&P

Written by John B. Cechman

Medical malpractice is defined as the improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. A person who alleges medical malpractice must prove four elements: (1) a duty of care was owed by the health care professional; (2) the health care professional violated the applicable standard of care; (3) the injured person suffered a compensable injury; and (4) the injury was caused in fact by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit. The plaintiff can make a claim for injury or wrongful death caused by the substandard conduct.
Physicians, as professionals, owe a duty of care to those who seek their treatment. This element is rarely an issue in malpractice litigation, because once a doctor agrees to treat a patient, he or she has a professional duty to provide competent care. More important is that the plaintiff must show some actual, compensable injury that is the result of the alleged negligent care. Proof of injury can include the physical effects of the treatment performed by the physician, but it can also include emotional effects. The amount of compensation at issue is usually a highly contested part of the litigation.
Causation may also be a vigorously litigated issue because a physician may allege that the injuries were caused by physical factors unrelated to the allegedly negligent medical treatment. For example, assume that a physician is sued for the negligent prescription of a drug to a patient with coronary artery disease and that the patient died of a heart attack. The plaintiff’s estate cannot recover damages for the heart attack and death unless there is sufficient proof to show that the medication was a contributing cause.
Physicians are called to testify as expert witnesses by both sides in medical malpractice trials because the jury is not familiar with the intricacies of medicine. Standards established by medical specialty organizations such as the American College of Obstetricians and Gynecologists are often used by these expert witnesses to address the alleged negligent actions of a physicians who practices in that specialty. Nonconformance to these standards is evidence of negligence whereas conformance supports a finding of due care.
All states have complex laws regulating medical malpractice litigation. Florida medical malpractice litigation is governed by Florida Statute Chapter 766. In Florida, a claim for medical malpractice is defined as “a claim arising out of the rendering of, or the failure to render, medical care or services.” The initial consideration is whether the injury in question arose out of the rendering or failure to render medical services. As an example, a Florida appellate court has determined that a claim for injuries resulting from a slip and fall in a pool of amniotic fluid by a maternity patient while descending from an examination table under the direction of a hospital employee constituted a claim for medical malpractice. The dropping of patient off an x-ray table and an incident where a patient falls while being moved from a bed to a gurney in a hospital are claims for medical malpractice. A patient banged in the head by an x-ray machine in a dental office is not a claim for medical malpractice.
When it is determined that an injury or death claim is a claim for medical malpractice, Florida Chapter 766 then dictates how the claim is perfected. The injured party then must serve the defendants with written notice wherein the defendants are identified and the theory of liability is described. Exactly what did the health care professional do or fail to do that caused the injury or death?
Negligence of the health care provider can be active malfeasance, such as a back surgery that perforates the stomach wall or nonfeasance such as failure to order appropriate testing to determine if a patient has cancer. In the failure to diagnosis cancer case, another issue usually litigated is whether the time delay between the failure to diagnose and the proper diagnosis resulted in a poorer outcome. If the outcome was the same or similar, the case has little value even through the health care provider was negligent.
In summary, medical malpractice litigation is time consuming, expensive and carefully regulated by Chapter 766 of the Florida Statutes. Fortunately, the vast majority of health care professionals are caring people who hold their patient’s well-being in high esteem. However, when a medical misadventure does occur, Florida law will provide protection and just compensation.
Please do not accept this article as legal advice. It is a general summary only. Every medical malpractice case is very much fact specific. If you have any questions about a potential medical malpractice claim, call our office at 239-334-1146 and let our medical malpractice attorneys help you. Goldstein, Buckley, Cechman, Rice & Purtz, P.A provides a full complement of legal services to clients in its Fort Myers (two locations to serve you), Cape Coral, Naples, Lehigh Acres and Port Charlotte offices. Contact our office for more information.

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