According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the U.S.—right behind heart disease and cancer. Every year, more people die from medical malpractice than automobile accidents or breast cancer.
Medical Malpractice occurs when doctors, nurses, medical technicians or hospitals are negligent in the care they provide to you or your family members and cause injury or death. The most common medical malpractice cases involve:
- Failure to diagnose a curable condition
- Delays in Diagnosis
- Surgical Errors
- Prescribing the Wrong Medication
- Discharging Prematurely
- Hospital Falls
- Birth Related Injuries & Death
The standard for determining whether medical malpractice occurred is not much different than the standard used to evaluate whether a driver was negligent in causing a collision. The issue is whether there was a failure to use reasonable care. For health care providers, reasonable care is that level of attention and care which most healthcare providers would utilize in a similar situation. The standard is often stated as whether the healthcare provider deviated from the prevailing standard of care.
Due to their experience with driving, most jurors are experts in what it means to use “reasonable care” when operating a car. However, in a medical malpractice case, health care providers need to be hired to evaluate a case at the earliest stages of investigating whether there was medical malpractice, as only experts in the specific medical fields at issue can testify on whether a patient was treated with reasonable care. This makes medical malpractice very expensive for an attorney to evaluate; and typically, only those attorneys with experience in evaluating medical malpractice cases even attempt to undertake such cases.
As a consumer of legal services, one of the most important questions you can ask an attorney is whether they have hands-on experience in evaluating and litigating medical malpractice cases. Many attorneys say they handle such cases when in fact, all they do is refer them out for a piece of the fee.
Kenneth J. Sobel, Esq. has extensive experience in handling medical malpractice cases and when they cannot be resolved, he tries such cases to juries. Kenneth J. Sobel’s experience includes serving as the Chair of the Florida Justice Association’s Medical Malpractice Committee for two years as well as chairing its Medical Malpractice Legislative Challenge Committee. Mr. Sobel has appeared numerous times before Florida Legislative committees on issues which impact every medical malpractice case and has participated in drafting legislation which governs the rights and responsibilities of medical malpractice victims. Sobel has also presented at legal seminars on Florida’s medical malpractice laws, has been frequently interviewed on medical malpractice topics; and serves on the editorial board of a national publication on Medical Malpractice.
Relative to the number of doctors who could be sued for medical malpractice, there are very few attorneys who accept medical malpractice cases. This disparity in numbers has taken a political toll on medical malpractice victims and their families. Well-financed doctors and hospitals have successfully changed Florida law to make the presentation of medical malpractice prohibitively expensive or just inaccessible for many victims and their families. Clients are not well served by thinking they have a good case when in reality, they do not. This makes it all the more important that your attorney understands the complexities of medical malpractice litigation. Kenneth J. Sobel, Esq. can provide considerable guidance in whether a case is worth pursuing which includes a thorough evaluation of the cost benefit analysis of whether starting a medical malpractice claim would serve the client’s best interests.
How Much do Medical Malpractice Attorneys Charge?
At Sobel Legal, your initial consultation and evaluation are free of charge. You will never be asked to write a check or present your credit card. If your case is not accepted, there is no charge. If your case is accepted, you will not pay any attorney’s fees or costs unless a recovery is made.
Presuit Screening- A Barrier to Medical Malpractice Suits
Before a medical malpractice suit can be filed, Florida law has imposed very expensive obstacles in the path of victims and their families. Failure to follow the exact requirements of these laws can result in a victim’s claim being dismissed.
An attorney must first gather all of the significant medical records on the victim and if there appears to have been medical neglect, have them evaluated by an expert practicing in the same medical specialty as the physician thought to have committed malpractice. After determining that there are reasonable grounds to believe that the health care provider deviated from the prevailing standard of care (medical negligence), the expert must sign a supporting affidavit. The attorney must then send that affidavit to the health care provider by certified mail in what is called a “Notice of Intent,” declaring the victim’s intention to file a lawsuit at the end of a ninety (90) day investigation period. The Notice of Intent must also include all of the medical records reviewed by the victim’s experts and further, must attach a Medical Authorization which identifies all of the health care providers who have treated the victim two years before the medical malpractice and all of the health care providers who have provided care to the victim since the medical malpractice.
Presuit Screening- An Invasion of Medical Privacy
Recently, the laws concerning the Medical Authorization have been changed to allow the health care providers, their attorneys and expert consultants to conduct secret interviews with the victims’ other health care providers. Kenneth J. Sobel, Esq. has successfully challenged this new law, however, other cases have upheld the right of potential defendants to engage in these ex parte, private conversations with a victim’s physicians. Kenneth J. Sobel, Esq. vigorously opposes any attempt to compromise his clients’ privacy rights and will continue to utilize every legal tool at his disposal to prevent this outrageous invasion of the sacred, time honored confidentiality shared between patients and their physicians.
Presuit Screening- An Economic Barrier to Medical Malpractice Suits
During the ninety (90) day presuit screening period, the attorneys on both sides of the case have the ability to engage in the discovery tools typically utilized only after a lawsuit has been filed. Both sides can do the following:
Send the other side Interrogatories- written questions, the answer to which are due in twenty (20) days;
Send the other side Requests for Production- asking for documents which must be produced within twenty (20) days;
Take unsworn statements of the other side.
If either side fails to comply with these presuit discovery requirements, once a lawsuit is filed, severe sanctions can be ordered, including the dismissal of a case or the defenses raised in response thereto.
Florida Medical Malpractice – All Victims are not Treated Equally
The most outrageous and unfair aspect of Florida’s medical malpractice law is that many families of deceased victims have no remedy. With rare exception, when someone dies as a result of medical malpractice, the following people, in the following order have the right to make a claim:
- The Victim’s Spouse;
- If No Spouse, The Victim’s Children Who Are Under The Age Of Twenty Five (25); and
- If There Are No Children, Then The Victim’s Parents, But Only If The Victim Is Younger Than Twenty Five (25)
This draconian law leaves many without a remedy at all and creates situations where doctors who commit malpractice can only be sued if their patient lives! This absurdity does not exist in any other area of personal injury law.
Florida’s Medical Malpractice Statute of Limitations
Victims and their families have two (2) years from the date they knew or through the use of reasonable diligence, should have known that they suffered an injury as a result of medical neglect. Frequently, it is not very clear when the two year period begins to run. Rare is the case where a health care provider approaches their patient or
patient’s family and informs them of an error.
In cases where the medical malpractice results in death, the two year statute does not begin with the date of death unless the act of malpractice occurred on the same date. Victims and their attorneys need to discover the date the error occurred which caused the death; and it is from the date they discover that error that the two year statute begins to run. It may be that the error is not discovered for more than two years. In that case, unless the error was fraudulently concealed from you, the Notice of Intent must be mailed no later than four years from the date the error occurred. If the error was fraudulently concealed, the claim can be started up to seven (7) years from the date of the error.
As discussed earlier, no medical malpractice case can be filed until the parties have complied with the presuit procedures. In order to give a claimant enough time to start their medical malpractice claim within the statute of limitations, a ninety (90) day extension can be obtained by filing an Automatic Tolling Petition with the clerk of the circuit court.
Victims should be very careful that they do not allow their statute of limitations to expire. Every case is different and if you think you may have a medical malpractice case, you should seek an immediate consultation with an attorney who is well versed in the technical requirements and pitfalls of Florida’s medical malpractice laws.
What Can You Do To Lessen The Chances Of Experiencing Medical Malpractice?
1) Ask Important Questions
Every medical procedure has inherent risks. The risks and benefits of the proposed procedure should be thoroughly discussed with your physician before the procedure is scheduled. Patients should ask their doctors the following questions whenever a procedure is recommended:
2) Investigate your Health Care Provider
You should ask or investigate every doctor as to whether they have:
Hospital Privileges. You should be very careful of doctors who do not have hospital privileges;
Medical Malpractice Insurance;
Board Certification in the medical specialty in which they profess expertise;
When in a hospital, you may be seen by “consultants.” You have the right to know the backgrounds of these consultants.
Florida Department of Health Licensee Lookup– links to or provides the following information:
Date of Licensure
Whether Board Certified
Whether they carry Medical Malpractice Insurance
Malpractice Cases Resolved for $100,000.00 or more
American Board of Medical Specialties, Board Certification Verification- The American Board of Medical Specialties is the only Florida Recognized source of verifying whether a physician is Board Certified in a specific specialty or sub-specialty. If you don’t find your doctors here when you look them up, it is likely they did not seek Board Certification or even worse, took the tests for Board Certification and failed.
3) Get Second Opinions
The practice of medicine is mixture of science and art. Reasonable physicians may recommend different methods of approaching a medical concern; and as a medical consumer, you have the right to explore those options. Once your deductible is reached, most health insurance policies will pay for a second opinion. Good physicians will not take offense to your asking for a second opinion. Obtaining a second opinion is one of the most important things you can do when given a recommendation for a procedure.
Just as pursuing good medical care involves a partnership between you and your doctor, pursuing a medical malpractice case involves a partnership between you and your attorney. At Sobel Legal, after we do a telephonic interview with you to determine whether you might have a medical malpractice claim worthy of pursuing, we set-up an appointment for you to meet Kenneth J. Sobel, Esq. During that appointment, many more details will be discussed where some of the most intimate aspects of your life will be discussed in confidence. This is not only an opportunity for your attorney to evaluate your case, but more importantly, it is an opportunity for you to evaluate your attorney.
During the course of your legal representation, you will receive advice from your attorney. It will be your choice whether to accept that advice and it is important that when your attorney makes a recommendation, that you trust your attorney. Having direct communication with Mr. Sobel enhances your ability to evaluate whether he would be a good fit for you; and once retained, builds the trust and confidence you will want to have in your attorney. A good relationship between us is something that not only you should value, but something that benefits us as well.
If you believe that you or a family member may have a medical malpractice claim, we encourage you to call for a free consultation. We can be reached at 954-526-7007.