Medical Malpractice FAQ’s (part 2)

What if I go to trial after rejecting the defendant/defense’s offer to go to voluntary binding arbitration in my medical malpractice case/go to arbitration? What if I go to trial after refusing to go to voluntary binding arbitration in my medical malpractice case?

If you go to trial after rejecting the defendant’s offer to go to voluntary binding arbitration in your medical malpractice case, your compensation awarded at trial will be limited to economic damages (medical bills, lose wages/time missed at work, etc.) and noneconomic damages in the form of pain and suffering (described above) up to $350,000.

In regards to the economic damages mentioned above, you will be entitled to recover past and expected future medical bills, as well as up to 80 percent of your wage loss and loss of future earning capacity. Loss of future earning capacity refers to the amount of money you will lose in the future as a result of your not being able to work or not being able to work as much.

In order to determine your loss of future earning capacity, your attorney may hire an expert called a vocational rehabilitation expert. The vocational expert will evaluate you and attempt to determine what work, if any, you’ll be able to do in the future. Your attorney may also hire an expert called an economist, who will attempt to quantify and give a number for the amount of money you are expected to lose in the future as a result of your inability to work or work as much.

In order to attempt to determine what your future medical bills will be, your attorney may hire an expert called a life-care planner. The life care planner will evaluate you and attempt to determine how much your future medical treatment will cost.

How long does the defendant/defendant have to pay after the arbitration of my medical malpractice or negligence case?

After the arbitration of your medical malpractice or negligence case, the defendant will have 20 days to pay the award.

Can I appeal the arbitration award in my medical malpractice or negligence case? Can the defendant/defense appeal the arbitration award in my medical malpractice or negligence case?

Yes, after an arbitration award in a medical malpractice case, either party (you or the defendant) can appeal the award. The appeal will be with the district court of appeal (DCA) for the district where the arbitration happened (for example, if your arbitration occurred in Broward County, the appeal would be to Florida’s Fourth District Court of Appeal/4th DCA).

Will I have to/do I have to go to a mandatory mediation/settlement conference in my medical malpractice or negligence case? Is a mediation/settlement conference mandatory in my medical malpractice case? What is a mediation? What will happen/what typically happens/what generally happens/what should I expect at my medical malpractice mediation?

Yes, in your medical malpractice case, you will have to go to a mandatory mediation within 120 days of the filing of your lawsuit – unless the parties to your case agree to extend this time period. This settlement conference must occur prior to three weeks before the trial date of your case.

At the mediation, you, your attorney, the defendant, the defense attorney and the defendant’s insurance company will all meet with a mediator. A mediator is a neutral, independent party who will attempt to help the parties to compromise and settle their case. At the mediation, typically both your attorney and the attorney for the defendant will present their case. This will happen in a common room in which all parties are present.

Once the presentations have been made, both sides will be split up into separate rooms (called “caucuses”). You and your attorney will go into one room; and the defendant, the defense attorney and possibly a representative from the defendant’s insurance company (called an “adjuster”) will go into another room. You will typically make a demand to settle, and the defense will make an offer. Numbers will be passed back and forth (you may agree to reduce your demand as the defense increases their offer). At some point, both sides will either agree on a number (in which case a settlement of the case will result) or not (in which case you will leave the mediation, an “impasse” of the mediation will result, and your case will continue).

Does the presuit screening period/process toll or extend the medical malpractice statute of limitations?

Yes, during the presuit screening period, the medical malpractice statute of limitations is tolled/extended. That is, the statute of limitations will not run during the presuit screening period.

Further, during the 90-day investigation period, the parties may agree to extend the statute of limitations. If negotiations end, then you will have 60 days (or the remainder of the statute of limitations period, if that is longer) to file your lawsuit.

This rule is based on Florida Statute 766.106, which can be accessed here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.106.html
Will/does the hospital where my medical malpractice or negligence occurred have insurance to cover/compensate me for my injuries?

The hospital where your medical malpractice or negligence occurred may carry liability insurance of at least 1.5 million per claim. The hospital may require that its physicians, osteopathic physicians, podiatric physicians, dentists, and nurses pay part of the costs of this insurance. This is because, if one of those medical providers commits medical malpractice while working at the hospital, he or she may be covered by the insurance. If the doctor is covered by the insurance, then the hospital may require that he or she pay a deductible when medical malpractice occurs.

Can I sue/can I make a claim against/can I pursue a case against the hospital where I was injured/hurt by medical malpractice or negligence?

Yes, if you were injured due to medical malpractice or negligence at a hospital, you may be able to pursue a case against the hospital. Hospitals are required to ensure that their staff are competent. Hospitals must properly vet potential staff members and must also properly supervise the activities of those staff members. Further, hospitals must implement an effective risk management program. If they don’t and such a failure leads to medical malpractice, hospitals can be responsible.

Can I make a claim/pursue a case/sue if I was injured/hurt due to medical malpractice or negligence at a public hospital? What is the difference between a public and private hospital? What is sovereign immunity?

Yes, if you are injured due to medical malpractice which occurred at a public hospital, then you may be able to pursue a case against the public hospital – although this would be a case of sovereign immunity since it would be against an entity owned and run by the government. Some hospitals are government run and own, and some are privately owned. If your case is against a public hospital, then there may be restrictions and caps on how much compensation you can recover. It is best to contact an attorney in order to determine if the hospital where you were injured was publicly or privately owned, and how this will affect your case.

Can I make a complaint about the doctor, hospital, medical provider or health care provider whose medical malpractice or negligence caused my injury/hurt me to the Division of Medical Quality Assurance/a medical review board?

Yes, if you’ve been injured due to medical malpractice, you can make a complaint regarding the hospital or doctor who caused your injury to the Division of Medical Quality Assurance. You can do this regardless of whether there was a settlement in your case. However, the fact that there was a settlement can’t be used against the doctor or hospital in your case (i.e., you can’t argue that the fact that the doctor or hospital settled is evidence that he, she or it was at fault and knew it). This is pursuant to Florida Statute 766.112, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.112.html
Is there a limit to/cap on the amount of compensation I can recover in my medical malpractice or negligence case? Is there a limit to/cap on the amount of noneconomic damages I can recover in my medical malpractice or negligence case? What are noneconomic damages?

Noneconomic damages are damages other than medical bills, lost wages/time missed or lost from work, etc. They refer specifically to pain and suffering, etc. In the State of Florida, there is a cap of $500,000 on the amount of noneconomic damages that can be recovered in a medical malpractice case. This means that $500,000 is the most that you can recover for your pain & suffering after being injured due to medical malpractice in the State of Florida.

There are, however, exceptions to this rule. They include:

  1. If the medical malpractice resulted in a permanent vegetative state or death,
  2. In the interest of justice, your Judge decides that, because of the specifics of the case, your noneconomic damages are especially severe,
  3. The jury in your case decides that the defendant’s negligence caused a catastrophic injury to you

If any of the above three exceptions apply, then you will be able to recover up to $1 million in compensation for your injuries – rather than the typical $500,000.

The computation of non-economic damages is regulated by Florida Statute 766.118, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.118.html
Is there a limit to/cap on the amount of noneconomic damages that can be recovered against a emergency room (ER), emergency room doctor/physician/health care provider/medical provider?

Yes, in a medical malpractice case against an emergency room or emergency room physician, the most you can typically recover in noneconomic damages is $150,000.

Is there a limit to/cap on the amount of noneconomic damages that can be recovered in my medical malpractice or negligence case if I am a Medicaid recipient?

Yes, if the hospital or doctor whose medical malpractice caused your injury treated you as a Medicaid recipient, then the most you will be able to recover in noneconomic damages is $200,000. The only exception to this is if you are able to prove by clear and convincing evidence that the hospital or doctor acted in a “wrongful manner.” A hospital or doctor will be said to have acted in a wrongful manner if he or she acted in bad faith, with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.

Wanton and Willful actions are worse than simple negligence. A careless mistake by a doctor or hospital can qualify as negligence. Wanton and willful behavior requires more – typically some element of intent or gross negligence on the part of the hospital or doctor. For example, if the doctor intended on doing wrong or knew that what he or she was doing was wrong, then the doctor’s behavior will be deemed wanton and willful and you will be able to recover more than $200,000 in non-economic damages – even though you were a Medicaid recipient.

What happens if the insurance company in my medical malpractice or negligence case acts in/is in bad faith? What is bad faith?

If the insurance company for the hospital or doctor whose medical malpractice caused your injuries acts in bad faith, then you will be able to recover more than the policy limits of the insurance policy. The policy limits are typically the maximum amount recoverable under an insurance policy. A doctor or hospital pays premiums in order to obtain an insurance policy; the higher the premiums, the bigger will be the policy. If you are injured due to the medical malpractice or negligence of that doctor or hospital, typically the most you will be able to recover is the policy limits.

An insurance company has a responsibility to pay out its policy limits if your case so warrants. For example, if you are catastrophically injured due to the obvious medical malpractice or negligence of a doctor or hospital insured by an insurance company, then the insurance company has an obligation to pay out its policy limits. If the insurance company doesn’t do so, then it will be deemed to be in “bad faith.” An insurance company deemed to be in bad faith can be responsible for more than just its policy limits (even though it would have only been responsible for paying its policy limits if it had done so within a reasonable amount of time after your injuries).

Bad faith actions in the medical malpractice context are regulated by Florida Statute 766.1185, which can be found here:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.1185.html
If the defendant in my medical malpractice or negligence case denies my claim, does the defendant have to provide/give me a written opinion from a medical expert/doctor that gives reasonable grounds for lack of medical malpractice or negligence?

Yes, if the defendant in your medical malpractice or negligence case denied your claim, the defendant must provide a written report from a medical expert or doctor asserting that there are reasonable grounds for the denial of your claim (i.e., that there wasn’t medical malpractice or negligence). This is pursuant to Florida Statute 766.203, which can be found here.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.203.html
Do I have to give/must I give/do I need to give/is it required/mandatory for me to give the defendant in my medical malpractice or negligence case my medical records if they are requested/asked for? Does the defendant in my medical malpractice case have to give me my medical records if I request them?

Yes, if either party to a medical malpractice case requests medical records in the possession of the other party (e.g., the defendant), then that other party must provide copies of those medical records. This is pursuant to Florida Statute 766.204, which can be accessed here:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/0766.html
At the onset/beginning/start of a medical malpractice or negligence case, do the parties have an obligation to/have to/must the parties/do the parties need to participate in informal discovery? What is informal discovery?

Yes, during the pre-suit portion of a medical malpractice case, both parties (i.e., the plaintiff and defendant) have an obligation to participate in “informal” discovery. Discovery is the process wherein each side learns what evidence the other side has or what the position of the other side is. Formal discovery typically takes place after a lawsuit is filed and is usually in the form of “interrogatories” (written questions that must be answered by the opposing party), “requests for production/to produce” (requests for documents or items in the possession of the opposing party), “requests for admissions” (requests that certain statements are admitted), depositions, and medical examinations.

In a medical malpractice case, on the other hand, informal discovery typically takes place before a lawsuit is filed. Informal discovery doesn’t require such formalities as requests for production/to produce, for example. Rather than sending a request for production as one would do in formal discovery, you could simply ask the defendant in your case to produce the documents relevant to your case in his or her possession. In the informal discovery phase of a medical malpractice case, the defendant is required to give those documents to you.

The informal discovery phase of a medical malpractice case is governed by Florida Statute 766.205, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.205.html
Can the Judge dismiss/throw out my case/claim if I don’t follow the presuit requirements in my medical malpractice or negligence case? Can the Judge dismiss the defendant’s response if the defendant didn’t follow the pre-suit requirements of my medical malpractice case?

Yes, if either party doesn’t follow the presuit requirements of your medical malpractice case (for example, by not attaching a written expert opinion by a doctor or medical expert), then the Judge may dismiss that party’s claim or defense. If you don’t follow the pre-suit requirements of a medical malpractice case, then your claim can be dismissed by the Judge. If the defendant doesn’t follow the pre-suit requirements of a medical malpractice claim, then the Judge may strike the defendant’s pleading (i.e., strike its defense).

In such a scenario, the losing party shall be responsible for paying the other side’s attorney’s fees and costs. If you claim gets dismissed, you will be responsible for paying the defendant’s attorney’s fees and costs. On the other hand, if the defendant’s pleading gets dismissed, then the defendant will be responsible for paying for your attorney’s fees and costs. This is pursuant to Florida Statute 766.206, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.206.html
What is the Florida Birth-Related Neurological Injury Compensation Plan? If my child sustains a birth-related neurological injury, do I have to/need to/must I apply for compensation through the Florida Birth-Related Neurological Injury Compensation Plan?

Yes, if your child sustains a birth-related neurological injury due to the medical malpractice or negligence of any doctor or hospital during the labor, birth, delivery or immediate post-delivery resuscitation, you must apply for compensation through the Florida Birth-Related Neurological Injury Compensation Plan (as opposed to simply filing a lawsuit).

The exception to this is if you can show clear and convincing evidence of bad faith, malicious purpose or willful and wanton disregard of human rights, safety or property. Bad faith or malicious purpose indicates an intent on the part of the doctor or hospital employees to cause harm or at least a consciousness that his or her actions may cause harm. Willful and wonton disregard indicates more than simple negligence. Negligence could indicate only a mistake on the part of the doctor or hospital. Willful and wonton disregard indicates more, such as a recklessness that has a high probability of causing injuries to others.

This is pursuant to Florida Statute 766.303, which can be found here:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.303.html
If I apply for compensation through the Florida Birth-Related Neurological Injury Compensation Plan, who will decide my case?

If you apply for compensation through the Florida Birth-Related Neurological Injury Compensation Plan, an administrative law judge will decide your case. This is based on Florida Statute 766.304, which can be accessed here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.304.html
If the administrative law judge decides/rules against me, can I file a lawsuit?

Yes, if the administrative law judge rules against you, you can then (but only then) file a lawsuit and pursue a case in civil Court.

How do I file a claim/begin/start a case with the Florida Birth-Related Neurological Injury Compensation Plan?

In order to start a case with the Florida Birth-Related Neurological Injury Compensation Plan, you must file a petition with the Florida Birth-Related Neurological Injury Compensation Association. In the petition, you must include the following information:

  1. The name and address of your attorney
  2. The name and address of the injured infant/baby/child
  3. The name and address of the doctor who provided obstetrical services at the time of the birth
  4. The name and address of the hospital where the birth happened
  5. A description of the infant/baby/child’s disability
  6. The time and place the injury happened
  7. A brief description of the incident

You must also provide the Association with enough copies to serve the doctor and hospital, as well as a $15 filing fee.

Within 10 days of filing the initial petition, you must also provide:

  1. All available medical records
  2. A description and location of any medical records not in your possession
  3. Any relevant assessments, evaluations and prognoses
  4. Any other relevant documents
  5. Any relevant bills
  6. Documentation of any private or governmental sources of payment of those bills

The proper procedures for filing a Florida Birth-Related Neurological Injury Compensation petition are given in Florida Statute 766.305, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.305.html
How long does the Florida Birth-Related Neurological Injury Compensation Association have to respond to your petition?

After the filing of your petition, the Florida Birth-Related Neurological Injury Compensation Association has 45 days to respond to the petition. After 60 days from the filing of your petition and before 120 days, the administrative law Judge must set a hearing in your case.

Before the hearing of my Florida Birth-Related Neurological Injury Compensation Plan petition, can I engage/participate in discovery? Can I ask questions of witnesses? Can I serve interrogatories upon/send interrogatories to witnesses? Can I take depositions of witnesses?

Yes, before the hearing of your Florida Birth-Related Neurological Injury Compensation Plan petition, you can engage in discovery. This means that you can send interrogatories (i.e., written questions) to witnesses and take depositions (wherein you will be able to ask questions of the witnesses) as well.

What will happen at the hearing of my Florida Birth-Related Neurological Injury Compensation Plan petition?

The hearing of your Florida Birth-Related Neurological Injury Compensation Association Plan will take place in the County where the birth injury occurred. Both you and the Florida Birth-Related Neurological Injury Compensation Association will be present.

At the hearing, the administrative law judge will make the following decisions:

  1. If the injury is a birth-related neurological injury. The injury will be presumed to be a birth-related neurological injury if you have proven that the baby/infant/child has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that, as a result, the baby is permanently mentally and physically impaired.

  2. If obstetrical services were provided by a doctor or a certified nurse midwife supervised by a physician during labor, delivery or resuscitation in the immediate post-delivery period in a hospital

  3. How much compensation you receive

The administrative law judge may also bifurcate the hearing on compensability and the award. This means that the administrative law judge may decide in one hearing if you are entitled to compensation, and in another hearing how much compensation you receive.

The procedures/process of a Florida Birth-Related Neurological Injury Compensation Plan hearing are given in Florida Statute 766.307, which can be found here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.307.html
What types/kinds of compensation can I receive if the administrative law Judge finds in my favor/rules for me/if I win my Florida Birth-Related Neurological Injury Compensation Plan hearing/petition?

If you win your Florida Birth-Related Neurological Injury Compensation Plan hearing, you will be entitled to compensation for the following items of damages:

  1. past medical bills and the expected costs of future care. This won’t include compensation for bills that have or will be paid by health insurance or under any type of governmental assistance program.

  2. Periodic payments to the parents or legal guardians of the infant/baby/child who sustained a birth-related neurological injury, although this cannot exceed $100,000. The administrative law Judge can decide that these payments be made in a lump sum, rather than in installments.

  3. If the baby/infant/child tragically passes away, a death benefit in the amount of $10,000

  4. Reasonable expenses related to the filing of the petition, including attorney’s fees

Can I appeal the decision of the administrative law Judge in my Florida Birth-Related Neurological Injury Compensation Plan hearing? Is the decision of the administrative law Judge appealable?

Yes, if you lose your Florida Birth-Related Injury Compensation Plan hearing or you are unhappy with the award, you can appeal the decision to the District Court of Appeal (DCA) of the jurisdiction where your hearing was held. For example, if your hearing was held in Broward County, then you can appeal the decision to Florida’s Fourth District Court of Appeals (4th DCA).

How long after the injury/birth do I have to file a petition under the Florida Birth-Related Neurological Injury Compensation Plan? What is the statute of limitations for a petition under the Florida Birth-Related Neurological Injury Compensation Plan?

After a birth-related neurological injury, you have five years to file a petition with the Florida Birth Related Neurological Injury Association. After that, you can no longer file the petition.

What must I/need I/what do I need to prove in order to win in/prevail in a medical malpractice or negligence case based on missed, incorrect, wrong, or delayed diagnosis/failure to diagnose?

If your doctor, hospital, medical provider or health-care provider failed to diagnose your medical condition and your condition became worse as a result, you may have a medical malpractice case based on failure to diagnose. What you will need to prove is that your condition became worse because of the failure to diagnose or delayed diagnosis. That is, you will need to prove that, but for the failure to diagnose or delayed diagnosis, your condition would not have worsened.

The defense in these cases will typically argue that your condition would have worsened either way (i.e., even if the diagnosis was made earlier). That is, the defendant may argue that the condition was bad enough initially that it would have progressed inevitably.

In order to counter this defense, you will need to prove that, had you been diagnosed earlier, the worsening of the condition could have been stopped and the progression avoided. In order to do this, your attorney will most likely hire a doctor or medical expert to evaluate you and your condition and testify that the failure to diagnose or delayed diagnosis caused the worsening of your condition.

Anthony Quackenbush handles medical practice cases in Fort Lauderdale and throughout the State of Florida. If you’ve been injured due to a medical malpractice or negligence case occurring anywhere in Florida, contact Mr. Quackenbush at 786-294-7711. He will give you a free, no obligation consultation. He will gladly talk to you about your case for free.

If Mr. Quackenbush ends up as the attorney on your case, he will work on contingency. This means that there is no charge to you up front. In fact, you will not be charged by Mr. Quackenbush until you’ve received compensation in your case – so there is absolutely no risk to you whatsoever.

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