Can I file a medical malpractice claim? There’s a lot of talk and a lot of press about medical malpractice claims. The system we have in Florida is a system that has developed over the last twenty (20) years. It’s been modified and tweaked almost every year, but here’s the big picture about the Florida medical malpractice system…

 A lawyer can’t just up and file suit against a doctor or a hospital or a health care provider. They (the lawyers) must follow a certain procedure that allows the person that they’re bringing a claim against to be apprised of the claim in advance and allowed an adequate time to conduct an investigation themselves to determine whether they agree that medical malpractice has occurred. There’s a procedure for it that lawyers that specialize in this area know about and it has to be followed exactly.

To start, you must obtain the records and have a board-certified lawyer review the records or a hospital administrator (if it’s a hospital) to give us an objective opinion whether or not there is malpractice. Why? Because we don’t want to file a suit and lose it.

Now any lawyer that files a lawsuit could conceivably lose the suit, but you don’t want to begin a medical malpractice lawsuit without the benefit of a highly specialized expert in the field and whatever the area of medicine is. If it’s obstetrics, or if it’s neurology, or whatever it happens to be, you want to have that board certified expert to tell you — yes, there is malpractice and it should be pursued.

Around fifty (50) years ago, it was impossible to find a doctor to testify against another doctor — virtually impossible. Sheldon “Shelly” Schlesinger, he’s a very famous Florida lawyer who specializes in medical malpractice. His sons still are very active in that field. Mr. Schlesinger just stayed after it until he eventually found doctors who would testify against other doctors. Now it’s fairly common. We can find highly qualified physicians that will agree to testify against other physicians if there has been what they call a breach in the standard of care.

So, what does that mean? It means that the doctor or the hospital did not do what another physician similarly trained in a similar situation, or another hospital with similar facilities and a similar staff, would have done under similar circumstances. So, there has to be a violation, a breach in the standard of care. It simply means that they didn’t do what they should have done based upon what other highly skilled people in the field do.

Once you make that determination, then you send a notice to the health care provider they have a time, say, 90 days to  evaluate it. They will give you information that sometimes helps the lawyer understand this case a little better or her case a little bit better. Occasionally we give information to the hospital and the doctor helps them evaluate their case a little bit better. And we attempt to settle these cases but many times they go on to formal suit.

Once a formal lawsuit is filed, an answer is filed and then discovery takes place in preparation for the trial. You can refer to our video or our website on discovery and what that means in a lawsuit. But discovery follows in a medical malpractice case like any other case that goes to a jury trial. The jury makes a determination of fault called liability and a determination of money awarded called damages. That’s a function of the jury.

The judge’s function during the trial is to instruct the jury on the law and during the trial there will be expert witnesses — experts for the doctor and expert for the injured person. The jury hears all of that and makes a final determination as to fault.

I think the Florida Statute is actually working pretty well. It’s been modified many times and tweaked over the years, but I think now we have a pretty good system. It’s fair to the doctors in the hospital and it’s fair to the injured parties.

Finally this — just because there’s a bad outcome or even a terrible outcome, in some circumstances even a death, that doesn’t mean that’s proof of negligence or a breach of the standard of care. When you have a terrible outcome, yes, that may be evidence that somebody has done something wrong – but not always. There’s no guarantee of that. It doesn’t necessarily follow that because there’s a bad outcome that there was medical negligence. That’s the primary reason why we send these records to highly specialized people to tell us what they think. Has there been a breach in the standard of care or not?