Standard of Care

Expert Testimony by Same Specialty Expert is Required on the Standard of Care

Florida medical malpractice cases are governed by Chapter 766, Florida Statutes. Section 766.102, Fla. Stat. Provides the standard of care in such cases as “the claimant shall have the burden of proving by the greater weight of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.

The Prevailing Professional Standard Of Care

The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

Further, with regard to affirmative medical intervention, the statute goes on to say that “the claimant must … show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention.”

You Only Have a Medical Malpractice Case If An Expert Says So

If you are wondering whether you have a good medical malpractice case under Florida law, you should know that a qualified medical expert must agree that your case has merit.  The medical care provided must be reasonable under the circumstances and that a physician cannot be criticized for a medical outcome that occurs within the normal expected range of outcomes for such a procedure. Florida medical malpractice attorneys use medical experts to make these determinations for the court.

Only Some Cases Carry An Inference Of Negligence

Generally speaking the existence of a medical injury does not create an inference or presumption that malpractice occurred.  The claimant in a medical malpractice case has to prove that their injury was caused by a breach of the prevailing professional standard of care by a health care provider.

Leaving Foreign Objects And The Standard Of Care

Section 766.102(3)(b), Fla. Stat. also says:

… the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

Once evidence that a foreign body has been introduced, the medical provider then has an opportunity to rebut if there is a medical reason why it was safer to leave the foreign object inside the body than to remove it.  When this happens, it is generally standard procedure to inform the patient that a foreign body was intentionally left inside the body to avoid the inference that doing so was medically negligent.

Surgical Needle

An example of a foreign body left inside resulting in an inference of negligence is the case where a surgical needle was left inside a child during pediatric heart surgery and then later found by other doctors in a subsequent procedure at another hospital.  That hospital was later issued two citations by Florida’s Agency for Healthcare Administration (AHCA) for leaving the needle in the child’s heart and not informing the parents.

Surgical Clips

On the other hand, a frequently received call at medical malpractice law firms is when a patient finds out after a surgery that surgical clips (much different than a surgical needle as described above) have been left inside the body.  While there may be some instances where leaving surgical clips will cause problems if left inside the body, the overwhelming majority of cases where surgical clips are left inside the body it is harmless or, if a problem results, then it is easily removable.  The function of surgical clips in surgery is that they allow the doctors to tie off blood vessels quickly and proceed with the surgical procedure itself rather than having to stitch or cauterize each vessel as they go.  This significantly lowers the blood loss and makes the procedure faster whereas there is usually only a small risk in leaving the clips inside after the surgery.

Ask Us If Leaving Something Inside Your Body Is Malpractice

While it is not absolute proof of a breach of the standard of care, it is suspicious when another hospital finds a foreign object that the patient was unaware of previously. This case also illustrates the rule of discovery on the statute of limitations for medical malpractice found in section 95.11(4)(b), Fla. Stat.

Where Can I Check To See If My Doctor Has Been Sued Before For Medical Malpractice?

In Florida, there are three main ways that you can tell if a doctor has been sued for medical malpractice before.

Check Local Jurisdictions

Each time a Florida doctor gets sued for malpractice, a lawsuit is filed in the appropriate jurisdiction, usually the county where the incident occurred.  Therefore, you can often check with the clerk of the court in the county in which your doctor is located (or has been located in the past) for prior malpractice lawsuits.

Here is a list of all the clerks of court located across Florida.

Florida Department Of Health

However, looking for lawsuits alone is not adequate because most cases settle without going to trial.  The Florida Department of Health reports a disciplinary history and malpractice claim history on each medical provider’s practitioner profile for claims larger that $100,000.  You can search FDOH practitioner profiles here for your doctor.

Office Of Insurance Regulation For Malpractice Claims

But again, your search is not over with just looking at the medical provider’s practitioner profile.  There are insurance claims for malpractice cases that are reported to the Florida Office of Insurance Regulation.  The reported information often involves not only the settlement amount (regardless of what it is) but also other information such as how much money was spent by the insurance company defending the malpractice claims.  You can search FLOIR here for prior malpractice insurance claims made against your doctor.

Keep in mind that while past claims of malpractice may shed some light on your situation, prior claims against doctors are generally not proof that the doctor violated the standard of care in your case.  To prove your case, you will need a medical expert to review your case and provide an affidavit supporting your case.

Cause Of Action For Lack Of Informed Consent To Medical Treatment

A claim for a lack of consent to medical treatment is recognized as a civil claim for battery under Florida law (see corrected opinion in Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002)).  The court described the legal duty in Gouveia with the following:

A physician violates his duty to his patient and subjects himself to liability if he withholds any facts that are necessary to form the basis of an intelligent consent by the patient to a proposed treatment. Likewise the physician may not minimize the known dangers of a procedure or operation in order to induce his patient’s consent. At the same time, the physician must place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action.

A good article discussing further the idea of medical battery can be found here.

Florida’s Medical Consent Law

Section 766.103, Fla. Stat. is the “Florida Medical Consent Law” and describes the legal standard that must be overcome in a claim for a lack of informed consent to medical treatment.  Florida law provides an exception to legal liability to medical provider:

  • when treatment is rendered under for an emergency under the “Good Samaritan” statute (section 768.13, Fla. Stat.)
  • when a “reasonable individual” would have a general understanding of the procedure along with medically acceptable alternative procedures and substantial and recognized hazards of the procedures
  • when the patient would reasonably have undergone the treatment of procedure had he or sheen been advised by the doctor

Further, the Florida Medical Consent Law goes one step further to provide a “rebuttable presumption” that consent was validly obtained for medical treatment when the above mentioned circumstances arise and that patient (or someone on behalf of the patient) signed the consent form with legal capacity.  It is important to mention that a person must only have general legal capacity (a low standard) rather than “intelligently” consenting to medical treatment.  Therefore, a claim for medical malpractice arising out of a lack of informed consent to medical treatment can be a difficult or legally impossible cause of action to prove.

The Unauthorized Practice Of Medicine In Florida

The unauthorized practice of medicine is a crime under sections 456.065 and 458.327, Fla. Stat.  However, if you have suffered damages as a result of unlicensed medical activity, you will need to sue for common law battery as an illegal and unlawful touching (in other words, you would have consented to the touching had the defendant had they possessed the proper medical license), much like a claim for a lack of consent under section 766.103, Fla. Stat. (“Florida Medical Consent Law”).  Whether your claims is collectible as a civil judgment or not is a question to be decided with the assistance of legal counsel.

If you suspect unlicensed medical activity, you should report it directly to the Florida Department of Health here or to the FDOH Division of Medical Quality Assurance Bureau of Enforcement’s website here.

Talk With a Medical Malpractice Attorney to Find Out If You Have a Case Today

If you or a loved one believe that a medical error has occurred, please contact a Lakeland medical malpractice attorney to confidentially discuss the facts and circumstances of your case. There is nothing wrong with asking the question and seeking answers when you may be wondering why things happened the way that they did. If we believe your case has merit, one of our Lakeland medical malpractice attorneys will tell you so and will take the steps to move forward with your case.

Read Our Blog

For recent legal topics, please see our personal injury blog or read our answers to frequently asked questions.  We help clients located in Polk County, including Lakeland, Winter Haven, Bartow, and Haines City, Florida with medical malpractice claims for medical treatment that fell below the generally accepted standard of care.

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October 27, 2016