Surgical Errors: Are They Always Medical Malpractice in Florida?
As an Orlando personal injury medical malpractice lawyer, I have received many calls from people wondering whether various surgical errors constitute medical malpractice in Florida. Very often people believe that a surgical error was committed because another doctor or medical provider told them.
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Two Most Important Questions Regarding Surgical Errors
In any event, the two most important questions would be: (1) the extent of the permanent damage that the surgical error caused; and (2) whether the doctor’s conduct fell below the professional standard of care.
Not All Surgical Errors Are Good Med Mal Cases
Regarding the first question, many are surprised to learn that not all surgical errors lead to a valid malpractice case, even if the doctor definitely did something wrong. This is because, unfortunately in Florida, medical malpractice cases must be extremely severe to justify the time and expense of a medical malpractice lawsuit. Therefore, if the doctor made a mistake that is easily corrected, or only led to minor or temporary problems, then there is almost definitely NOT a case worth pursuing. That is surprising, and unfair, because we are talking about a situation where we know the doctor did something wrong, and caused harm. But the value just isn’t high enough to justify the expense.
Florida lawmakers have made Florida’s malpractice statute so complicated that lawyers must spend tens of thousands, and often hundreds of thousands, to prove medical malpractice cases. Medical malpractice cases are far different from other types of personal injury cases in that regard.
Simple Example Of A Bad Med Mal Case
Let me give you a simple example. Dental malpractice is governed by the medical malpractice statute. A few years ago I was receiving many calls from victims of dental malpractice, including people who had teeth improperly removed, or totally lost. In most of those cases, there seemed to be a pretty clear case that the dentist had done something wrong. Unfortunately, almost all dental losses are not high enough in value to justify a med mal lawsuit. (The calls actually became so frequent that I opted to remove “dental malpractice” from my website–precisely because we normally cannot help unless the damages were TRULY catastrophic, like maybe their face was severely and permanently disfigured (extreme) during routine dental surgery.)
However, there most definitely are surgical error cases that are worth pursuing as a malpractice case.
Simple Example Of A Good Med Mal / Surgical Error Case
Let me give you another example from an actual Florida case (not mine). A woman had surgery for carpal tunnel syndrome, which involves the wrist. When the doctor was giving anesthesia, he perforated her esophagus. He also failed to recognize the damage after surgery, when she was complaining about pain in her chest. So he sent her home. Later her friend found her unresponsive, and she had to undergo extensive treatment, several surgeries including a life-saving surgery, a drug-induced coma for several weeks, and learning to eat and gain her mobility again. Those are the types of injuries caused by surgical error that are serious enough, most definitely, to justify a medical malpractice case based on personal injuries.
Lost Wages Are Part Of The Damages In Med Mal Cases
Another aspect of the damages that we consider in medical malpractice cases are lost wages. These also must be significant to have any bearing on our decision regarding whether to accept a medical malpractice case, or not. In other words, if you are likely to lose a few weeks or months of work, that would not matter much. However, if are expected to lose several years away from a high paying job (due to injuries caused by medical malpractice), or a lifetime of work, that begins to move the meter in the direction of justifying a medical malpractice case.
What Are All Of The Damages You Can Receive From A Med Mal Case?
The damages you can recover in a med mal case are: (1) past and future medical expenses (past must be reimbursed, but often at a considerable discount): (2) past and future lost wages caused by the med mal; and (3) pain and suffering, which is extremely subjective, so very difficult to predict. If the case doesn’t settle, then eventually a jury would decide those numbers, after hearing about the medical bills, and seeing any evidence regarding lost wages, together with evidence (hopefully extensive) of your pain & suffering, and how the injury has affected your life, work, career, hobbies, family life, etc.
The Next Question Is Whether The Doctor Actually Did Anything Wrong
The next question is whether the surgeon’s conduct fell below the standard of care in the community. Often people will have some idea of WHY they think their doctor made a mistake. We listen to those reasons. If the argument seems valid, the next step is ordering the medical records, reviewing those, and also having an expert doctor review them. The question is always whether the doctor failed to do something that he should have done, or did something that other doctors wouldn’t have done.
If someone is catastrophically injured during surgery, but the doctor did nothing wrong (according to other doctor experts), then most medical malpractice lawyers will refuse to take the case any further. Indeed, without a sworn statement from another doctor that the treating doctor made a mistake, Florida has a statute (law) that prohibits med mal lawyers from filing a lawsuit.
If you were seriously injured during a surgery, and believe your doctor made a mistake, please call us for a free consultation. We never charge you one penny unless we recover money for you.