Medical Malpractice

What is Medical Malpractice?

Some people incorrectly believe that "malpractice" connotes conduct that is worse or more serious than simple "negligence," but that is not normally the case. Medical malpractice is just ordinary negligence by a healthcare provider which causes injury. It is no different in theory than negligence by a motorist who does not pay attention and runs a red light causing an injury.

Florida has a statute which defines the standard of care as that level of care, skill and treatment which is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers under similar circumstances.  In other words, the standard of care may sometimes be described as doing what a reasonably prudent doctor (or nurse, dentist, etc.) would do under the circumstances. In a malpractice trial, the judge tells the jury about this definition, and after hearing the evidence of what happened the  jury decides what they believe a reasonably prudent similar healthcare provider should have done under the circumstances. This decision by the jury is normally aided by the testimony of expert witnesses from both sides, who explain the medical issues during the trial.   

In an emergency room malpractice case, the standard of care may be defined as "reckless disregard" rather than negligence.  That harder to prove standard of care for emergency room cases has been added as a section to Florida's Good Samaritan Statute, which is Section 768.13 Florida Statutes .  

Why do I need a lawyer?

What if the hospital has already expressed an interest in settlement?  Every now and then a hospital (rarely a doctor) will approach a family and offer to make a quick settlement when there has been a fairly obvious mistake causing an injury.  Hospitals love it if a patient will negotiate and settle with them without retaining a lawyer.  Here are three good reasons why you would still benefit from retaining a lawyer.  

1) Every malpractice case is unique and the value depends on a detailed analysis of all elements of liability, causation, and damages.  The hospital is very experienced in analyzing and handling malpractice claims and settlement negotiations.  Its representatives know  what your claim is really worth, but you do not.  This creates very unequal negotiating positions and makes it hard for you to negotiate for fair value.    The responsibility of the hospital's claims adjuster is not to pay fair value, but to pay the least amount they can get away with.  A lawyer on your side will help you determine the true value of your claim and ensure you are not taken advantage of.  

2)  If there is any discount on the settlement value because you don't have an attorney, the hospital wants it .  In other words, while you are the one who is unrepresented and exposed to several downside risks, the hospital will want to reap the economic benefit of you being unrepresented.  They will want to pay you the net settlement value deducting what you would have paid to a lawyer if you had hired one.  

3) In most cases, at least in Florida, there are liens against your settlement proceeds by entities like Medicare, Medicaid, HMO's, or any other private group health insurance companies which have paid for your medical care.  The rule is that if they paid for your medical treatment that was caused by a negligent healthcare provider, and you collect money because of it, you have to pay back all or part of the money which they paid out for your treatment.   Failure to pay back some of these liens can actually be a crime.  A lawyer can help you figure out BEFORE you settle the claim if there are any such  liens which must be repaid and what the amount is that must be repaid.  That way you will know if you need to raise the amount you are willing to accept, in order to handle these liens and still net the same amount from the recovery.  A malpractice lawyer is normally experienced in techniques for handling these liens, and either eliminating them entirely or at least minimizing the amount which must be paid back.  So by retaining a lawyer you will be in a better position to know what you will truly net out of any settlement before you agree to accept it, and you will have professional help after you have settled in reducing or eliminating these required paybacks.    

Do all doctors have insurance?

The short answer is no.  There actually is a law in Florida (458.320, F.S. ) that says doctors must carry $100,000 in malpractice insurance in order to practice medicine. In order to have hospital staff privileges (they see patients in hospitals and not just in their offices) they must have at least $250,000 in malpractice insurance.  As an alternative to having an actual malpractice insurance policy, Florida law also allows doctors to use other types of pre-arranged secured assets to cover claims in these amounts, like trust accounts, bank letters of credit, and similar arrangements. There is nothing inherently wrong with these other types of security, but they are rarely used.

Unfortunately, these amounts of insurance are often woefully inadequate to pay the actual damages in medical negligence claims. What good is a $250,000 malpractice policy if the patient's injuries result in medical bills of $600,000? What about wage losses and other damages? And the $250,000 is gross, not net after paying for expenses and attorney's fees to file a suit to collect the money. Fortunately, many doctors carry insurance policies in larger amounts.

But the law also has a loophole that allows doctors to carry no insurance at all.  If your doctor practices without insurance he should have a sign posted on the wall of his office advising his patients of that fact.  Of c ourse you have a problem if he doesn't post a sign and he has no insurance.  What will you do, sue him?  You still have the problem of difficulty collecting, because he has no insurance.   

If a hospital is involved in your injury, you may ac tually be able to sue the hospital for allowing the doctor to practice there without the required insurance or assets. See your lawyer about that.

Many doctors hold title to their assets in ways to make it difficult to collect a judgment from them personally.  CPA's routinely give seminars to doctors with names like "How to Protect Your Assets From the Trial Lawyers". They never give those seminars more appropriate names, like "How to Commit Malpractice, Cause Enormous Pain and Financial Injury to Your Patients and their Families, Yet Escape Any Responsibility To Them."  

You certainly should think twice about knowingly going to a doctor who doesn't carry malpractice insurance. A good doctor wants to have malpractice insurance for 2 reasons. First it pays for his lawyer if he ever needs one to fight a claim that he believes is without merit. But, most importantly, if he does make a mistake, the insurance is there to help his patient who has been unintentionally injured. If he is a decent human being he knows that he can actually make a mistake, and he cares enough about his patients to want them compensated if he does. There is also something discomforting about any doctor that feels adversarial enough toward his patients that he is even willing to post a sign in his office advising them that they can't get any money from him if he hurts them.

Something else is alarming about a doctor that posts a sign in his office saying that he doesn't have malpractice insurance. It may be that he has had so many prior claims, he simply can't afford to buy insurance anymore because his insurance premiums got too high, or none of the insurance companies are willing to underwrite him.  That should worry you as a patient.  

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The information provided on AccidentTreatment.com is not intended to be legal advice or medical opinion, but merely conveys general information related to legal issues commonly encountered. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.