Is Medical Malpractice Difficult to Prove?
Whether you have a chronic illness or suffer a sudden medical event or injury, any interaction with the healthcare industry can be overwhelming. In addition to worries over your loved one’s condition or your own, the terms and procedures used by doctors and other medical professionals are often strange and complex. As a result, it is often difficult for patients to understand the exact nature of a diagnosis or treatment.
The complexities of medicine also make it difficult to know when a preventable error has occurred. In these instances, hiring a medical malpractice attorney is crucial to make sure your rights are protected.
If you suspect that you or a loved one suffered injury due to subpar care, Colling Gilbert Wright & Carter can help. Please call (407) 712-7300 today for a free case evaluation. Our medical malpractice lawyers are based in Orlando and serve all of Florida.
Proving Medical Malpractice
Medical malpractice is often difficult to prove. There are a number of different reasons for this difficulty, including:
Mistakes Are Not (Necessarily) Malpractice
You do not have a viable claim just because a healthcare provider makes a mistake. The mistake must rise to the level of negligence.
In medical malpractice cases, negligence constitutes an error that a competent provider would not have made in the same situation. This is known as the “standard of care.”
The Standard of Care Requires Expert Testimony
In order to assert that a healthcare provider was negligent, it is crucial to establish what the accepted protocol is according to the medical profession. Doing so requires evaluation of the evidence and testimony by an expert in the same field as the provider in your claim.
For example: If your baby is diagnosed with cerebral palsy and you pursue a birth injury claim against your doctor, you will need to hire an expert in obstetrical care (such as an OBGYN) to review the care you and your baby received and testify that your doctor was negligent.
Standards for Negligence Vary by Situation
The circumstances of your medical situation may affect the determination of negligence in your case. Generally, emergency medical workers enjoy greater legal protections than professionals providing routine care or performing elective procedures.
Medical Evidence Is Complicated
Your overall health and the treatment of an illness or injury may be documented across multiple records, including:
- Your medical chart
- Notes on your medical history
- Lab test results
- X-rays and other imaging
- Prescription medication records
Patients may have access to some of these records, but the full documentation can be time-consuming and expensive to acquire.
Causation Is Difficult to Prove
In any personal injury case, you must establish that the defendant’s negligence resulted in your injuries and subsequent damages. In cases of medical malpractice, this direct link between negligence and injury may be hard to prove.
For example: If a patient develops terminal cancer that goes undiagnosed, it is generally not enough to show that your doctor was negligent in diagnosing the condition. You must prove that the delayed diagnosis directly resulted in your worsening health and the subsequent losses.
Complications can also make causation more difficult to prove. Surgeries, medications, and other treatments all have risks. There is a possibility of complications even if your medical team does everything right. In these situations, it may be difficult to prove that negligence on the part of one or more providers resulted in your injuries.
Healthcare Providers May Be Reluctant to Testify Against Their Peers
As with many professions, doctors and other medical providers often observe an unspoken rule of not speaking ill of or second-guessing others in their field. This may result in a “veil of silence” surrounding instances of medical malpractice.
If you or a loved one was the victim of medical negligence, it may be difficult to get to the truth. As a result, it is crucial to contact a medical malpractice lawyer who can investigate your case, gather the necessary evidence, and hire the appropriate experts on your behalf.
How a Medical Malpractice Attorney Can Help
Given the difficulties of proving your medical malpractice claim, it is important to understand what a lawyer can do to help. Some of the ways an Orlando medical malpractice attorney can assist you include:
Collecting Medical Evidence
Litigation in a medical malpractice claim will focus not only on the injury or illness that may have resulted from the healthcare provider’s negligence, but your overall health history. Lawyers representing the insurance company for the doctor, hospital, and other professionals will scrutinize this information closely. It is important for you and your attorney to have all the facts in building your claim.
In addition to records of the treatment you received (and errors that may have occurred), your lawyer and hired experts will review information such as pre-existing conditions, the medications you take, health and family history, and more. Knowing the contents of your medical records and other documentation will help your attorney establish the causation of your injuries, as well as anticipate possible defense arguments.
Hiring Medical Experts
Medical experts who testify at trial in malpractice cases are highly esteemed in their fields. Many are able to charge hundreds of dollars an hour when they take part in litigation.
If you try to handle the case on your own, hiring such experts would be prohibitively expensive. When you hire a medical malpractice lawyer, the law firm will absorb the upfront expense. Your lawyer will also know which experts to hire (i.e., the medical specialties involved in your case) and how to make the best use of their knowledge and experience. This makes the handling of your case more cost-effective, enabling you to keep more of the potential recovery.
Filing Your Claim on Time
The statute of limitations for medical malpractice claims in Florida is 2 years. This affords you very little time to build a case against the negligent doctor and other providers.
When you hire a medical malpractice lawyer, you have someone dedicated to investigating and winning your case. This enables you and your family to focus on healing while your attorney handles the aspects of your legal claim.
Handling the Notice of Intent
Florida law requires that the provider be notified of your intent to sue for medical malpractice before you can file a claim. The provider may indicate that it wishes to settle, in which case your lawyer will handle the settlement negotiations on your behalf. If the provider declines to settle your case, you have a limited time to file a medical malpractice lawsuit.
With the notice of intent to sue, you must also submit an affidavit certifying that you have a valid medical malpractice case. A physician in the same specialty as the provider you are suing must review your case and offer an expert opinion on the negligence that may have occurred in your care.
As with hiring expert witnesses, your medical malpractice lawyer can determine what type of specialist is needed to assess the merit of your case. Your attorney can then prepare your notice of intent to sue with the affidavit of merit and initiate legal proceedings on your behalf.
Get Help with Your Medical Malpractice Claim
Medical malpractice litigation is complicated, and instances of negligence in a healthcare setting are not always easy to identify. If you suspect that a doctor or other provider was negligent in treating you or a family member, it is important to speak to an Orlando medical malpractice attorney as soon as possible.
The attorneys at Colling Gilbert Wright & Carter have decades of experience handling medical malpractice claims across a wide variety of specialties. We understand the challenges of these cases, and we have helped many clients recover the compensation they deserve for injuries and the death of loved ones due to medical negligence.
For a free case evaluation, please call (407) 712-7300 today. Our medical malpractice lawyers serve clients throughout Florida, including Orlando, Tampa, Miami, and other areas.