Q:What makes a good malpractice case?
A:Each case is unique and needs to be considered on its own particular merits and facts. But there are certain issues your lawyer will have to work through before deciding if he can accept your case. Since malpractice cases are expensive and time consuming to pursue, one of the first questions your lawyer will need to address is whether the case is economically justifiable.

Assuming the damages are serious enough to justify bringing suit, the lawyer must also determine if there is liability, i.e. did the action or inaction fall below the professional standard of care. He will most likely have to hire one or more doctors as expert witnesses to testify on this issue. Usually at least one expert will be hired before the suit is filed and additional experts are often hired before the case proceeds to trial.

These experts will also help establish that the negligent conduct was the actual cause of the injuries complained of. Sometimes this is obvious, and sometimes not. For example, in cases involving negligent delay in the diagnosis of breast cancer, it may be easy to establish that the defendant misread a mammogram, but very hard to establish that the patient would have survived if only the cancer had been diagnosed six months earlier. Complicated medical questions arise such as what type of breast cancer was this? What size was it? What was the cancer cell doubling time? How far had it already spread when the misdiagnosis occurred? This issue of whether the alleged negligence actually caused any injury to the patient, or if so, then how much injury was caused by the negligence and how much was caused by the preexisting medical condition, is the main focus of many malpractice cases.

Q:What are compensatory damages?
A:Compensatory damages "compensate" the injured person for various kinds of losses or damages. These may also be referred to as “actual damages.” The courts do not allow attorneys to argue that the award should be what a juror would want to go through a similar injury, but the instructions call for “reasonable” compensation.

Q:What is Medical Malpractice?
A:Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

Q:How long do I have to bring suit?
A:Florida has a two-year statute of limitations in medical negligence cases. Generally, this means that the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred with a reasonable possibility that medical malpractice caused it.

Florida also has a "statute of repose," another harsh provision in its civil laws. This means that - unless there is fraud, misrepresentation, or concealment, one can never sue a health care provider more than four years after the actual malpractice incident. So even if the family does not know or can't be expected to know, family members cannot bring a claim four years after the incident occurs in most circumstances.

Florida has one significant exception - "Tony's law" - enacted in 1996. For malpractice incidents that occurred after July 1, 1996, the four-year statute of repose cannot cut off a child's malpractice claim before the child's eighth birthday. Be careful, though. The two-year statute can still cut the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility medical malpractice caused it.

Since the rules about limitations are often changed by the legislature, and often modified by the appellate courts, you should consult with an attorney immediately if you think your potential case could have a statute of limitations problem.
What is a Statute of Limitations?

A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated. In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as "periods of prescription" or "prescriptive periods."

Q:What must I prove in my medical malpractice case?
A:A plaintiff in a professional negligence case brought against a health care professional must introduce evidence which the court finds sufficient to establish all three of the following:

Negligence
Proximate (immediate) cause
Damages

Fail to prove any one of these elements, and your case dies. In other words, lack of adequate proof of any one of the three elements means that the plaintiff has not made their case.

Negligence is defined as the failure to use ordinary care. Professional negligence is the failure of a health care provider to do something that should have been done in keeping with good and accepted medical or nursing practice or the failure to do something that should have been done in keeping with good and accepted or nursing practice.

Proximate cause is a legal concept which essentially means a legal cause. One must prove that the health care provider's negligence did cause the plaintiff's injuries and that the injury suffered by the patient (or some similar injury) was reasonably foreseeable beforehand as a result of the health care provider's failure to render appropriate care.

Damage is the harm done to the patient that directly results from the health care provider's negligence. It is the physical, emotional and financial harm that the plaintiff experienced as a result of the incident.

Q:What kinds of expenses are involved?
A:The prosecution of a malpractice case is expensive. Medical records must be obtained, depositions must be taken, and experts must be paid. The investment also includes costs for exhibits and technology to fully demonstrate the devastating injuries that are personal to each of our clients. The cost for our firm to develop a medical negligence case today often runs $50,000 to $200,000. In more complex cases, this cost may be substantially higher.

Q:How long will my case take?
A:Normally it takes 1 to 3 years to bring a case to conclusion. The time required varies because of factors such as the number of parties involved, the number of depositions and investigation needed, schedules and commitments of experts, the judge, and so forth. Most of the cases that we accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case's conclusion by two to four years. Although more than 80 percent of our cases settle, we find that defendants - perhaps emboldened by "tort reform" - are growing more willing to take cases all the way to trial.

Q:What is a subrogation claim?
A:If you have been injured and incurred medical bills because of the negligence of a healthcare provider, your medical bills may have been paid by Medicare, Medicaid, or a group health insurance company or HMO. If you obtain a recovery from the negligent healthcare provider that caused your injuries, you are required by law to pay back Medicare, Medicaid, or the group health insurance company or HMO for the bills they paid as a result of the negligence of the defendant. These claims of Medicare, Medicaid or your insurance company that they should be paid back are called "subrogation claims."

The laws and procedures dealing with Medicaid and health insurance programs are different from state to state, and even between insurance companies, so you will need to check with your lawyer about the specifics for your case. Medicare is a federal program and no matter where you are if your bills were paid by Medicare you will have certain obligations to at least partially reimburse Medicare for what it paid. Similarly, if a medical bill for services relating to your injury is unpaid, the unpaid healthcare provider may also have a subrogation claim and need to be paid out of the recovery.

Q:Are there caps on damages?
A:Some states have enacted laws which put caps or limits on the maximum amounts people can recover in medical malpractice or other injury cases. Other states have no maximum amount. Some of the state laws providing for caps on damages are relatively new and are still being challenged on the grounds they are unconstitutional. Even though there may now be a cap in your state, it may not withstand final court challenge. You will need to check with a lawyer in your state as to what types of damages are recoverable and whether there are any limitations on the amounts.

On the national front, there has repeatedly been proposed legislation to put a nationwide cap of $250,000 for intangible damages in medical malpractice cases. This cap would be very unfair because it would not just cap frivolous cases, which often get thrown out by the courts or overturned on appeal anyway. The cap would mostly impact legitimate cases with severe injuries and it would mean that the most seriously injured victims will only receive partial compensation while the less severely injured may receive full compensation. This cap will also discriminate against children, the elderly, and stay-at-home moms who can not establish the wage losses that others can, so this is all they would get no matter how severe the injury. Most people would agree that for things like blindness, amputations, and the death of a child these caps would be terribly unfair. Many people who generally think a cap is a good idea do not understand that the proposed cap is the "gross" amount that may be recovered, and the actual net to the client after deducting attorneys fees and expenses may actually be much less. Moreover, if $250,000 is the maximum exposure, insurance companies will rarely ever settle even the most meritorious cases.

Q:What are punitive damages?
A:Punitive damages are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.

Punitive damages are often awarded where compensatory damages are deemed an inadequate remedy. The court may impose them to prevent under-compensation of plaintiffs, to allow redress for undetectable torts and taking some strain away from the criminal justice system. However, punitive damages awarded under court system that recognize them, may be difficult to enforce in jurisdictions that do not recognize them. Punitive damages awarded to one party in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.

Because they usually compensate the plaintiff in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, where the defendant's conduct was egregiously insidious. Punitive damages cannot generally be awarded in contract disputes.

Also, punitive damages can be in excess as compared to the compensatory damages. There are no certain limits or ratio of punitive damages to that of compensatory damages.

Q:Who will decide my case?
A:In most states you will have a right to a jury trial if you want one. Your trial will be presided over by a judge, but the judge will decide issues of law and will make rulings on what evidence the jury is entitled to hear. The jury will decide who they think is telling the truth, what the facts are, and the amount of damages you are entitled to recover.

Q:What is informed consent?
A:Informed consent is a legal condition whereby a person can be said to have given consent based upon a clear appreciation and understanding of the facts, implications and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given. Impairments to reasoning and judgment which would make it impossible for someone to give informed consent include such factors as severe mental retardation, severe mental illness, intoxication, severe sleep deprivation, Alzheimer's disease, or being in a coma.

Some acts cannot legally take place because of a lack of informed consent. In cases where an individual is considered unable to give informed consent, another person is generally authorized to give consent on their behalf e.g. parents or legal guardians of a child and caregivers for the mentally ill. However, if a severely injured person is brought to hospital in an unconscious state and no-one is available to give informed consent, doctors will give whatever treatment is necessary to save their life (according to the Hippocratic oath) which might involve major surgery e.g. amputation.

In cases where an individual is provided insufficient information to form a reasoned decision, serious ethical issues arise. Such cases in a clinical trial in medical research are anticipated and prevented by an ethics committee or Institutional Review Board.

Q:What if no one will take my case?
A:Do not hesitate to talk to more than one lawyer about taking your case. Maybe the third lawyer you talk to will have had good success with a case just like yours, while the first two had bad experiences with a similar case. But what if you have done that and still, no attorney will take your case? It means the consensus is either that your case probably cannot be won, or that the likely damages that can be recovered will not justify bringing the case.

It is our recommendation that you not try to pursue the case without a lawyer. There may be much more at stake for you financially than you realize. If you are convinced that you received inappropriate care but cannot find a lawyer, you are encouraged to file a complaint with the appropriate medical regulatory board or agency. Any of the malpractice lawyers who turned your case down should be able to tell you what agency to contact for your area. While filing a grievance with an administrative agency will not ordinarily result in compensation for you, it may in fact help prevent the incident from happening to other patients in the future.

Q:What does the term insurance "bad faith" mean?
A:In Florida, "bad faith" refers to an unreasonable or unfair conduct by an insurance company.

Q:What Are Some Examples of Bad Faith Conduct?
A:Unreasonable denial or termination of an insurance claim that should have been paid.
Unreasonable delay in making payments to the policyholder.
Unreasonable failure to defend a policyholder who has been sued under a policy containing a liability provision.
Unreasonably attempting to under-settle or lowball the payment of a claim.

Q:How Do I Know I have A Bad Faith Insurance Claim?
A:When you purchase an insurance policy, whether for life insurance, disability insurance, homeowners insurance, or any other type of policy, you are entitled to the full benefits of the policy if you have a covered claim.If the insurance company refuses to pay or if it delays your payment, you may have a bad faith insurance claim.

Q:What Are My Rights Under My Insurance Policy?
A:An insurance policy is a contract. In simple terms, you pay the premium and the insurance company must pay the benefits if the conditions specified in the policy occur. Every insurance policyholder has the legal right to make sure that his / her policy and its contractual agreements are upheld in full. What Should I Do if My Insurance Company Is Denying Coverage or Delaying Payment? You should seek legal advice immediately. Some cases are easy and quick to handle while others may require aggressive legal actions against the insurance company.

Q:What is a class action lawsuit?
A:In law, a class action or a representative action is a form of lawsuit where a large group of people collectively bring a claim to court. This form of collective lawsuit originated in the United States and is still predominately a US phenomenon, at least the US variant of it. However, in several European countries with civil law (as opposed to the Anglo-American common law principle, which is used by US courts), changes have in recent years been made that allow consumer organizations to bring claims on behalf of large groups of consumers.

Q:What is Products Liability?
A:A products liability claim is usually based on one or more of the following causes of action:design defect, manufacturing defect,
a failure to warn. The claims may succeed even when products were used incorrectly by the consumer, as long as the incorrect use was foreseeable by the manufacturer (or other party in the "supply chain").

In general, products liability claims are based not on negligence, but rather on strict liability. Under the theory of strict liability, a manufacturer is held liable regardless of whether it acted negligently. It allows recovery for an injured customer who might be in a difficult position to prove what a manufacturer did or did not do wrong in its design or manufacturing process. It is presumed that a manufacturer with its deep pockets may be better situated to absorb the cost of liability and would consider such expense in setting price for its products.

Some legal commentators consider claims of failure to warn to be based on negligence.A basic negligence claim consists of proof of a duty owed,a breach of that duty, an injury, and that the breach proximately caused the plaintiff's injury.

Over time,negligence concepts have arisen to deal with certain specific situations, including negligence per se (using a manufacturer's violation of a law or regulation, in place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence under certain conditions).

Q:Why should I agree to settle my case?
A:In many instances it may be advisable to settle the case before it goes to trial. While some injury victims are reluctant to consider a settlement offer from the Defendant, refusal to do so may cost you in time, effort, and frustration, not to mention the possibility of losing the case at trial and receiving nothing! This is not to suggest that you accept an unreasonable offer. But please listen to your lawyer’s advice regarding settlement. Your lawyer is trained and experienced in dealing with personal injury Defendants. He or she is familiar with the Defendant’s lawyer’s tactics. You should take advantage of this knowledge and consider his or her recommendation. However, the final decision is yours to make and your lawyer will respect your choice and work as hard as ever to see the case through to a successful conclusion.

Some important matters to keep in mind when considering a settlement offer from the Defendant:Settlement negotiations can begin as early as the filing of the pleadings and may not conclude until minutes before the start of trial.Negotiating a settlement is an art; therefore it is important that you control your emotions when dealing with the Defendant and the Defendant’s lawyer.
You may be asked to sign a document associated with the settlement agreeing to drop all further legal actions involving the Defendant and the incident in dispute. This "release" or "waiver" is a typical component of the settlement.

Q:What is a tort?
A:When someone or something causes an injury to another person or thing, the legal profession calls such an act a "tort." A tort is committed when one person is harmed because of the wrongful act of another. The purpose of tort law is to assign responsibility to the individual, group or company responsible for causing such harm. The term "personal injury" encompasses a wide variety of circumstances ranging from a stubbed toe, to an amputated limb, to death, and everything and anything in between.