813.221.5000 info@burnettlaw.com

When Can You File a Medical Malpractice Complaint?

When Can You File a Medical Malpractice Complaint?

Medical students, although not bound by the traditional Hippocratic Oath, do take an oath upon graduating stating they’ll comport themselves with equanimity in all matters of public concern. Treating the sick, dying and otherwise helpless patient is of public concern, although not all perform their duties as directed. Doctors do take this sacred oath, and are bound by its principles both legally, and morally.

Medical malpractice is the manifestation of one’s inability to follow protocol, the painful end result of a broken doctor-patient relationship. And when patients lose their lives due to neglectful care, it is well within the rights of family members to file a civil action against the hospital, surgeon, or both.

However, medical malpractice suits aren’t clear cut. Discuss your case with a skilled Tampa medical malpractice lawyer to learn whether you have a viable claim.

Elements of a Medical Malpractice Case

Building medical malpractice cases requires all four (4) elements below meet the standard of proof as required by law:

  • Doctor-patient relationship: Once patients consent to a physician’s care, and the physician begins administering such, a binding relationship is formed that is legally enforceable.
  • Breach of duty: During the course of regular care activities, a physician, hospital, nurse or surgeon must perform an action that breaches their duty to care. This could be failing to administer drugs (or too much), leaving surgical instruments inside a patient, failing to perform a life-saving procedure, or discharging a patient before due time.
  • Causation: Breaching patient care caused clear and obvious damages, including death.
  • Damages: Because breaching duty to care caused damages, the individual responsible for care is liable financially.

Breaching healthcare provider-patient trust, such as malicious billing or selling patient information for personal gain, are examples of nonphysical forms of medical malpractice.

A major contributing factor in many Tampa medical malpractice complaints is surgical error.

What Is a Surgical Error?

A more common type of malpractice claim involves surgical errors. Although patients normally sign consent forms prior to procedures, and most routine surgeries go as planned, unexpected complications or errors may occur naturally during a surgery. Incidents like a patient’s body going into shock unexpectedly, for example, are unplanned complications though they may not constitute medical malpractice.

Litigable surgical errors are preventable errors beyond the expected risks of performing procedures. Surgeons may not only be civilly liable, but could face criminal charges if gross conduct is found to violate Florida criminal statutes.

Causes of Surgical Errors

Patients entrusting their procedure to qualified surgeons may have experienced the following due to medical malfeasances committed by professionals acting with reckless regard to their profession:

  • Medical incompetence, which stems from inexperienced or otherwise undereducated surgeons performing procedures they shouldn’t;
  • Inadequate preoperative prep, another reckless way to send patients into surgery without proper tools, or preparation for complications.
  • Incorrect work process, which is another term for ‘taking unneeded shortcuts’ to complete otherwise lengthy procedures.
  • Neglect, a simplified way to describe poor sterilization of scalpels, using equipment that doesn’t work as directed, using too much local anesthetic or improper post-operation stitching.
  • Fatigue, expected when doctors work long shifts but intolerable when surgeons know their schedule may consist of lengthy procedures.
  • Drugs or alcohol, a common coping mechanism doctors use to decompress after long days. Problem is, some surgeons drink before their procedure to ‘calm down’.
  • Little or no communication, causing surgeons to mark wrong area for surgery or administer an overdose of Propofol.

The prestigious Johns Hopkins University studied the number of medical errors happening nationwide in 2016. They estimate both preventable and neglectful errors are now the third leading cause of death in America, and predict those numbers will increase over the next decade.

Examples of Surgical Errors

Patients who entrust surgical procedures to professionals trained to perform these risky anatomical fixes may have encountered:

  • Severing a major artery, such as the ccarotic, when operating in that area wasn’t needed;
  • Performing procedures when none were merited or requested by the primary physician;
  • Operating on the wrong patient;
  • Misadministration, which involves the poor administration of radiation therapy;
  • Leaving sponges or similar instruments inside a patient;
  • Cutting nerves which leave the patient unable to react to physical stimuli.

Many, many more surgical errors can be considered litigable if an element of negligence is discovered. Before you litigate against a hospital for medical malpractice, or pursue action against a surgical professional, a great deal of information and corroboration should exist. Filing claims lacking factual bases may result in an unwanted countersuit.

When Should I File a Medical Malpractice Complaint?

Florida Statutes Annotated § 95.11 states that medical malpractice proceedings must commence within two (2) years of learning of the injury, or when the victim is reasonably sure that an injury they sustained later on is linked to a medical error. Four (4) years is the maximum time frame allotted to malpractice victims to file their claim.

Before initiating your claim, you must submit written notice to the hospital or medical facility of your intent to file suit. This must be done within 90 days of your injury, or when you discovered an injury was linked to a medical error. Your notice must include a signed affidavit from a medical professional that your complaint has sufficient merit to establish malpractice.

You are encouraged to retain the services of an attorney who knows Florida medical malpractice law. If your medical malpractice complaint is filed incorrectly, lacks professional documentation backing your claim, or if the hospital is not properly notified of your suit, your claim could be dismissed.

Medical Malpractice Complaints in Florida Are Serious

Unlike other types of personal injury, medical malpractice claims in America are rarely brought. Not because these incidents are covered up or nonexistent, but because the complexity involved with proving surgical error or doctoral mishaps means that victims must have evidence that proves beyond a reasonable doubt a medical error took place.

If you or someone you love have sustained injury or death, and have evidence that a surgical procedure, misdiagnosis, radiological misadministration or wrong dosage of medication caused the injury or death, contact Burnett Law immediately.