When we seek care from a medical professional, we expect them to provide treatment that conforms to accepted standards to improve our health. Unfortunately, too many people suffer new injuries or worsened conditions every year due to negligent care from their doctors.
If your physician’s harmful care rose to the level of malpractice, you can pursue a legal claim to recover compensation for your losses, including costs of additional medical treatment, lost income, and pain and suffering. Injured patients often obtain financial recovery through a negotiated settlement with their healthcare provider. However, if your case does not settle out of court, your attorney may need to sue your doctor for medical malpractice to recover the compensation you deserve.
As they pursue a medical malpractice lawsuit, your lawyer must follow requirements established by state law. These obligations include obtaining certification of the reasonableness of your claim, notifying your doctor of your intention to file suit, and filing your malpractice complaint within the statute of limitations.
A medical malpractice attorney can walk you through the steps of filing a negligence lawsuit against your doctor and prepare you for what to expect when pursuing compensation for your injuries and losses. Your lawyer can also handle complex evidence and issues in your case to put together persuasive arguments and an effective legal strategy to win your malpractice lawsuit.
When Does a Doctor Commit Malpractice?
Not every adverse outcome of medical treatment occurs due to a doctor’s negligence. The law recognizes that patients can still experience poor results despite the best efforts of medical professionals. Instead, medical malpractice only occurs when a healthcare provider renders treatment that fails to meet the applicable standard of care.
While the specific standard of care differs in each patient’s case, the law generally defines it as the treatment decisions and actions that other providers of similar training and skill would undertake in identical circumstances.
The standard does not hold doctors liable for malpractice if other medical providers in the same specialty would have made the same decisions. Liability for malpractice only attaches if a doctor’s treatment fails to conform to the standard of care and, as a result, their patient suffers harm.
Examples of Medical Malpractice
Common examples of doctor malpractice include:
- Failure to diagnose
- Misdiagnosis/delayed diagnosis
- Medication errors, including miscalculating dosage or prescribing contraindicated medication
- Improper treatment
- Failure to treat
- Birth injuries
- Hospital-acquired infections
- Surgical errors, including wrong patient/wrong site surgery, causing unintended damage, or leaving equipment/materials inside a patient
- Anesthesia errors, including administering too much/too little anesthesia or failing to monitor the patient’s condition during surgery
- Failure to obtain informed consent, including not warning patients of known risks of treatment
How Do You Prove Malpractice?
Proving that you suffered malpractice requires complex evidence, such as:
- Medical records from the allegedly negligent treatment
- Medical records of treatment for the injuries or conditions you experienced due to the malpractice
- Provider notes
- Staffing records
- Surveillance footage
- Witness testimony
Most medical malpractice claims require you to present expert testimony supporting your allegations of negligence. In most cases, your lawyer must hire another doctor in the same specialty or subspecialty as the doctor who negligently treated you to serve as your expert.
Your expert will then draft a report explaining the applicable standard of care in your case, how your doctor’s treatment failed to meet the standard of care, and how substandard treatment caused your harm. Only certain circumstances might not require expert testimony, such as surgical equipment or materials left inside a patient.
What Happens in a Medical Malpractice Claim?
Suing a doctor for medical malpractice requires several steps, including:
Investigating Your Claim
Your medical malpractice attorney will begin preparing your lawsuit by investigating the facts and circumstances of the negligent treatment you received. Your lawyer may request documents relating to your medical care, such as your medical records, provider notes, and staffing records. Your attorney may also request other evidence like surveillance video or ask to speak to other staff members involved in your care.
An attorney will also gather documentation of your expenses and losses, including:
- Medical bills from treatment for injuries or conditions caused by the malpractice
- Receipts for travel expenses to seek specialist care
- Pay stubs/income statements to calculate your lost income if you cannot work
Your lawyer will also hire doctors to serve as medical experts on your case, writing reports and providing testimony to explain how your doctor’s actions fell below the standard of care and caused the injuries or harm you suffered.
Sending a Demand Letter/Notice of Intent to Sue
After gathering enough evidence to prove your doctor’s negligence, your lawyer will draft two documents required by Florida law to sue a doctor for malpractice.
First, your attorney must prepare a certification stating that they have investigated your claim and reasonably believe you have a valid medical negligence case against your doctor.
Your attorney must also send the doctor written notice of your intent to sue them for malpractice. This notice allows your doctor 90 days to investigate your allegations and decide whether to accept or deny your claim. Your doctor and their legal counsel may also agree to negotiate a settlement of your medical malpractice case.
Filing a Complaint
After your doctor’s 90-day investigation period expires, you may file suit by submitting a complaint to the trial court. In most cases, you will file your lawsuit with the trial court for the county or district where you received negligent treatment from your doctor. Your complaint will describe your allegations of negligent care by your doctor and request relief, including financial compensation.
Your attorney must serve a copy of your complaint and the summons on your doctor and any other parties you sued. After receiving your complaint, your doctor may respond by filing an answer, which contains admissions or denials of each allegation in the complaint. Your doctor or their attorney may also file a motion to dismiss your lawsuit if your complaint fails to allege sufficient facts to establish a plausible medical malpractice claim.
Once the parties have submitted their pleadings, they proceed to the discovery stage of the medical malpractice lawsuit. In discovery, parties exchange documents and information to determine which facts remain disputed by the parties and identify issues for trial.
Parties may send each other interrogatories, which ask questions about the underlying events of the case or the existence of relevant evidence, or requests for the production of documents, which demand copies of documents or other recorded materials in a party’s possession or control.
Parties may also depose witnesses, which creates a record of the witness’s testimony. Parties will usually take your deposition, the at-fault doctor’s deposition, depositions of eyewitnesses to your care, and depositions of the parties’ experts.
Parties in a medical malpractice case often continue settlement negotiations after the injured patient has filed a lawsuit. Exchanging evidence and witness testimony in discovery helps clarify the relative strength of each party’s case. Your attorney may suggest participating in alternative dispute resolution instead of going to trial.
Common alternative dispute resolution mechanisms include mediation, a more structured form of negotiation facilitated by a neutral third-party known as a mediator, and arbitration, a trial-like proceeding in which an arbitrator or panel of arbitrators issues a determination on the outstanding issues in the case.
Trial and Post-trial Proceedings
If you and your doctor cannot settle your medical malpractice claim, your lawsuit will eventually reach trial. At trial, your attorney and your doctor’s legal counsel will present your cases to a jury (or a judge in a bench trial). Each side will submit evidence and witness testimony and can cross-examine the other side’s witnesses. At the end of the trial, the jury or judge will issue a verdict deciding the case and awarding you compensation if the verdict is in your favor.
Either party dissatisfied with the verdict or judgment may seek relief by filing post-trial motions, which ask the trial court to correct alleged errors during the litigation. Parties can also appeal to a higher court to review the case for mistakes that may have affected the result.
The Statute of Limitations on Medical Malpractice Claims
Florida law imposes strict deadlines on filing medical malpractice lawsuits. The statute of limitations requires you to file your medical malpractice suit within two years of the negligent treatment or within two years of discovering the harm caused by the negligent treatment.
However, under the statute of limitations, you may not file a medical malpractice lawsuit more than four years after the negligent treatment occurred, regardless of when you discovered your injury, or more than seven years if your doctor engaged in fraud, concealment, or negligent misrepresentation. If you file a medical malpractice suit on behalf of a child under eight, you have until the later of the child’s eighth birthday or the expiration of the standard limitations period to file suit.
State law requires your lawyer to file a statement certifying they have conducted a reasonable investigation of your claim and reasonably believe you have a valid medical malpractice case. You may request a 90-day extension of the statute of limitations to complete the investigation into the validity of your claim.
The law also requires you to provide your doctor with written notice of your intent to sue them for medical malpractice. After you serve notice of your intention to sue for malpractice, your doctor has 90 days to investigate and evaluate your claim. The statute of limitations also pauses or “tolls” during these 90 days since you cannot file your lawsuit until this period expires.
How an Attorney Can Help You With Your Malpractice Claim
A medical malpractice lawyer can help you through complicated evidence and procedures in your lawsuit. Your attorney can handle the details of preparing and pursuing your case while you focus on recovering from the injuries and harm you suffered due to negligent care.
Reach out to a medical negligence attorney for help:
- Investigating your case and securing evidence that supports your claims
- Identifying other liable parties besides your doctor, including nurses, lab/radiology technicians, and hospitals/medical facilities
- Evaluating your legal options for financial recovery, including determining the extent of applicable insurance coverage
- Documenting your injuries and losses to calculate the compensation you deserve
- Retaining medical experts to provide the opinion testimony needed to prove your case
- Following the procedures for filing a medical malpractice lawsuit, including observing the statute of limitations, obtaining certification of investigation, and submitting a notice of intent to sue
- Negotiating with insurance adjusters and defense lawyers to pursue a settlement that pays you compensation while avoiding the need for litigation or trial
- Litigating your medical malpractice lawsuit and advocating your case to the judge and jury at trial, if necessary
Understanding the Medical Malpractice Claims Process Can Help Reduce Your Anxiety and Stress Over Your Financial Recovery
Pursuing a medical malpractice lawsuit involves complex evidence and legal procedures. Knowing what to expect in suing your doctor for malpractice can make the process seem less scary and relieve your worries about getting compensation.
A personal injury attorney can guide you through your claim by investigating the case, preparing an effective legal strategy, and advocating for your right to compensation and justice at the negotiating table or trial.