Malpractice Law

Malpractice is when a professional engaged in providing a type of service is guilty of negligence.  The two most common types of malpractice are medical and legal, committed by doctors and lawyers, respectively.


Now there is no question that there are a lot of lousy lawyers and cruddy doctors out there.  Yet many people seem to want to file a malpractice suit because they feel slighted or ignored, or because their doctor or lawyer returned a less than optimal outcome.  You must remember that the standard for malpractice is that your doctor or lawyer must have done something that a reasonable lawyer or doctor with ordinary skill in the field would not have done.  Thus, in malpractice law, professionals do not have to be spectacular, they just have to be ordinary – and that amounts to a valid defense.


A malpractice case is much more complex than a case for ordinary negligence.  This is because a major issue is professional judgment.  An expert must testify as to whether or not the defendant’s actions were reasonable under the standard of ordinary skill.  The case may easily turn into a battle of the experts, with the jury serving as referee.


Medical Malpractice


Doctors don’t like to ever admit they are at fault.  The medical profession is fast becoming America’s new religion, with the idea that ordinary individuals must believe in “Medical science” without question.  This is quite a dangerous idea.  Doctors are quite capable of making mistakes, despite the purest of motives, and often fall victim to an arrogant mindset that possession of power often brings about.  You, as the patient, are the world’s biggest expert on your own body.  Good doctors know this full well.  A good doctor will ask you lots of questions and listen to the answers.  A not-so-good doctor will often seem brusque, uninterested, or judgmental.  None of these things, in and of itself, constitutes malpractice.  Yet, when seeing a doctor, you can do many things to protect yourself.  Ask questions and don’t be intimidated.  Research any conditions or medications you feel you might need.  If something feels wrong or off in medical advice you receive, seek a second opinion.  And write down both questions and answers if you doubt your ability to remember.  If more people did these things, there would probably be fewer mistakes.  If you are just too intimidated, picture your doctor as the world’s most glorified auto mechanic!


For a doctor to admit fault, or settle a malpractice case, is a huge deal.  It will follow him for the rest of his life as part of the permanent record.  He may face sanctions from the hospital he works for and may have trouble finding patients.  There is also the personal ego aspect.  As mentioned above, doctors simply don’t like admitting they are wrong, and often get extremely upset when they hear the word “Malpractice.”  To be fair, many doctors are honestly doing the best that they can and are not actually guilty of malpractice.  For these reasons, malpractice cases are far more likely to go to a full jury trial and are far less likely to be settled out of court than other types of negligence cases.


Medical malpractice cases are also very expensive for injured parties (plaintiffs) to pursue.  In a typical case, all of your medical records have to be pulled by your attorney and handed over to an expert, often a doctor or former doctor.  The expert must review these records and testify in court that the facts and circumstances amounted to medical negligence.  These very necessary costs can run into tens of thousands of dollars.  Juries are also quite sympathetic to doctors, who they generally view as trying to help society.  However, there are many valid medical malpractice cases.  If you think you have a claim for serious harm caused by malpractice, the best thing to do is consult a lawyer who will give you an opinion as to the merits of the case.


All doctors are required to carry malpractice insurance.  Because of the high costs of lawsuits and other factors, these insurance premiums are very high – so high that doctors are actively fleeing certain states with the highest premiums.  States, understandably, don’t want their citizens to be without doctors.  So there is an ongoing effort to “Reform” medical malpractice litigation – or in plain English, an ongoing effort to screw over victims.


Florida is especially and egregiously screwing over victims with the passage of recent “Reform” laws.  There are two major changes enacted July 1, 2013.  The first affects who can be an expert witness against a doctor.  In the past anyone in the same or similar specialty could be an expert witness.  A joint surgeon could testify against a back surgeon, etc.  Now the law has changed so that the expert witness must be in exactly the same specialty!  This is an incredibly discouraging change.  Medical specialties are generally a close-knit community.  Just like police officers or judges, doctors who know one another are incredibly reluctant to testify in court, regardless of the merits of the case.  Certain specialties are also rare and command absurdly high hourly rates.  A plaintiff injured by a neurosurgeon may find it incredibly difficult and prohibitively expensive to find another one willing to testify.


The second change is so absurdly bad, one wonders just how much the Florida legislature has been lobbied and financed by the various medical associations.  The second change would require you, as the victim, to agree to let the other side interview your doctor about you without you or your attorney present!  The limitations as to that conversation would be so vague that they could easily discuss your medical history.  This amounts to forcing you to waive your right to medical privacy in order to even file a malpractice lawsuit!  Luckily, a Federal Judge felt the exact same way, and in October, 2013 ruled that this particular provision violated a Federal privacy law known as HIPAA.  However the ruling did not affect the changes about “experts” mentioned in the previous paragraph.


Although a medical malpractice case may be an uphill battle, it is not an unwinnable one.  Like with all potential personal injury suits, contacting an attorney and receiving their opinion costs nothing and can potentially be a life-changing decision.  The more serious the injury and the worse the conduct the better the chances of winning.  Also realize that the law places a great deal of value on your health and ability to work.  Many factors go into determining the value of your case, and what a fair settlement offer would be.  A facial scar is more serious than a non-facial scar.  A permanent injury to the neck drives up the value of the case more than a temporary injury.  Any permanent loss of a limb, sense, or organ likely drives up the value of the lawsuit tremendously.  Only experienced malpractice attorneys know how these factors play off each other in getting a damage award.  An unscrupulous attorney could easily settle your case for less than it is worth and you probably would not know the difference – thus it is important to retain an attorney that you trust.


Legal Malpractice


Attorneys are held to very high ethical standards.  They are also held to the same reasonable and ordinary skill standards as doctors when assessing malpractice.  If you suspect your attorney is guilty of negligence or intentional conduct such as stealing money from you, your best bet is to contact another attorney who specializes in legal malpractice cases.  The State Bar Association will be able to assist you in finding one.


Like medical malpractice, legal malpractice cases often turn into a battle of the experts as to what was reasonable and proper conduct.  However there are certain types of conduct that are almost guaranteed malpractice. Stealing money and missing deadlines (such as the deadline to file a lawsuit) that result in permanent dismissal of a case are two examples.  Again, conduct that merely makes you feel slighted is not malpractice.  Not answering your every phone call is very different from never returning any phone calls.  An attorney experienced in prosecuting legal malpractice claims can help you decide whether to move forward.