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What is Medical Malpractice
Medical malpractice occurs when a doctor, nurse, hospital, emergency room, radiologist or any type of healthcare provider negligently causes an injury. In order to prove negligence, a plaintiff is required to provide expert testimony to show the medical provider deviated from the appropriate standard of care. The standard of care is different for different types of medical specialties.
For example, a cardiologist is held to a different standard for the diagnosis and treatment of conditions of the heart, than a dermatologist would be held to, and vice versa. Medical malpractice claims are some of the most complicated claims, both legally and medially. You need an experienced lawyer who is familiar with the complexities of Chapter 766, Florida Statutes and a firm with the experience, education, training, and financial wherewithal to pursue your case to conclusion.
At Diaco Law, we offer a unique advantage. Jay Diaco is a seasoned medical malpractice lawyer with nearly 30 years of medical malpractice experience who has successfully obtained multi-million dollar awards on behalf of his clients for decades. Jay has deposed hundreds of medical experts in his 30 years of medical malpractice experience, alongside with his brother and partner, Daniel S. Diaco, MD, JD. Dr. Diaco is one of the rare individuals in the United States who holds both a Medical Degree and Juris Doctorate in Law.
Because of this, Diaco Law’s approach to medical malpractice cases is unparalleled. Dr. Dan Diaco is an actively practicing board certified plastic surgeon and an attorney. His expertise in medicine and law allows us to evaluate and assess medical malpractice cases with a higher level of precision and comprehensiveness.
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What kinds of things could potentially be considered malpractice?
- Negligent failure to timely diagnose a disease or condition.
- Negligent failure to timely treat a disease or condition.
- Negligent failure of ER to order appropriate consultations, testing and/or negligently discharging a patient form the ER.
- Negligent failure to properly read diagnostic films (MRIs, CTs, X-Rays, etc.).
- Injuries and/or death from negligently performed surgery.
- Injuries and/or death from negligently administered anesthesia.
- Negligent misreading or misinterpreting lab results, leading to untimely and/or incorrect treatment.
- Negligent prescribing incorrect medication or administering the wrong dose, causing adverse effects.
- Negligent follow-up or aftercare following a medical procedure, appointment or surgery leading to complications.
- Negligently performing the incorrect and/or unnecessary surgery that does not address the patient’s condition.
- Negligent failure to provide informed consent to a patient about the risks, benefits, alternative treatments and/or therapy that results in injury.
How do you prove medical malpractice?
Because Florida is a tort reform state with an incredibly detailed statutory pre-suit regulations, you need an experienced lawyer who is familiar with the complexities of Chapter 766, Florida Statutes.
Chapter 766 is strictly interpreted by Florida Courts which means a failure to comply with the statute, WILL result in a complete waiver of your claim. This requires obtaining sworn affidavits from appropriate medical experts to swear and attest that the medical provider “deviated from the standard of care” which caused a negligent injury. Simply having a medical injury or being unsatisfied with your medical care is not enough to have a medical malpractice lawsuit.
According to Florida Statutes § 766.102 You need to…
- Prove that the medical professional was negligent and breached the standard of care. This means that the medical professional did not act in the same way or provide the same level of care that a similarly situated medical professional would provide under the same circumstances.
- Proving negligence alone isn’t sufficient. You also need to demonstrate that your injury was directly caused by the medical professional’s negligence and wasn’t the expected outcome. This is done with expert testimony from a licensed specialist in the same field as the defendant, who thoroughly reviews the victim’s medical records, before rendering an opinion.
- Prove that the injury resulted in specific damages: Damages can include wrongful death damages on behalf of an estate, or can be the past and future economic damages (medical expenses, lost wages, economic losses related to the injury as well as past and future non-economic damages like physical pain and suffering, or in the case of a wrongful death, the loss of parental or spousal support and services, consortium, etc.
Do I need an attorney to file a medical malpractice lawsuit? What is the process?
Florida’s strict pre-suit requirements can pose challenges when navigating medical malpractice claims without help from experienced medical malpractice lawyers like those at Diaco Law. Proving liability and negligence is a complex process that demands expertise with the complexities of the law and of medicine; both of which Diaco Law is uniquely qualified to assist.
Once we review the case with an expert and determine that you might have a valid case, the next step is to serve the prospective defendant with a Notice of Intent to Initiate Litigation. This begins the 90 day pre-suit period. As mentioned above, the Notice of Intent must include an affidavit from a medical professional attesting to the good faith basis for the alleged claim of medical malpractice.
At the end of the 90 day period, the prospective defendant must admit, deny or make an offer to settle. Most often, pre-suit claims are denied which requires a formal lawsuit be filed to pursue the claim in Circuit Court. After suit is filed, depositions are taken of the relevant parties and experts, and if a case does not settle at Court Ordered Mediation, the case proceeds to a trial on the merits before a jury of 6. (“Florida Medical Malpractice Laws and Regulations”).
How long do I have to file a medical malpractice claim?
Typically, the statute of limitations for a medical malpractice case is two years from the time the incident is “discovered,” or “should have been discovered,” but in no event shall it be later than 4 years from the date of the incident or occurrence. Unlike auto accident cases, medical malpractice claims in Florida do not adhere to a strict 2-year statute of limitations from the date of negligence. This is because injuries from medical malpractice may not be discovered until months after the surgery or treatment in question, hence the use of the “discovered” language. Because of this language, the statute of limitations strictly runs at 4 years. However, this 4-year period does NOT bar claims brought on behalf of minors on or before the child’s 18th birthday (Fla. Stat. Ann. § 95.11.).
How can Diaco Law help me with my medical malpractice claim?
Jay Diaco, Dr. Dan Diaco, Esq., and the Diaco Law team is prepared to evaluate your potential claim with a comprehensive approach encompassing both legal and medical expertise. This provides us with a unique advantage that sets us apart from other law firms. We have a proven track record of successfully representing the victims of medical malpractice claims as well as the survivors of wrongful death medical malpractice claims, having obtained muti-million dollar awards on their behalf. We are driven to secure the best outcomes for our clients.
If you would like further information about a potential medical malpractice claim or any other type of injury claim issue, call Diaco Law at (813) 221-7978.
Sources:
- “766.102 Medical negligence; standards of recovery; expert witness.” Online Sunshine, Florida Legislature, www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.102.html.
- “95.11 Limitations Other Than for the Recovery of Real Property.” Online Sunshine, Florida Legislature, www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html#:~:text=95.11%20Limitations%20other%20than%20for,of%20record%20in %20this%20state.
- Goguen, David, J.D. “Florida Medical Malpractice Laws and Regulations.” AllLaw.com, Nolo, n.d., www.alllaw.com/articles/nolo/medical-malpractice/laws-florida.html.
My experience with Diaco Law was great, they went above and beyond for me and always had my best interest first.
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Taylor & Melynie were the best! They helped me with with everything, were the most kind & sweet people I’ve worked with. Hopefully I never need their type of services again but if I ever did I will choose them, always!!!
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First time getting in an accident, Taylor and the rest of the staff at Diaco made the process easy and painless. Fought and got me more than I originally was told. No police report and they still got me what I was owed. I can’t thank you all enough!
Mike
My case had complications due to having two accidents close to one another and one of the drivers being uninsured. Diaco Law got me a settlement that I was happy with and they were very good at protecting my interests through this turbulent situation.
James
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