How To Protect Yourself From Medical Malpractice

Medical Mistakes Happen

The prestigious Institute of Medicine of the National Academy of Sciences has reported that 98,000 people in the United States die each year from medical mistakes that could be prevented. In addition, thousands suffer permanent injuries as a result of such errors, and billions of dollars are spent treating their injuries. State and Federal governments have not enacted enough laws to protect patients and their families.

Finding A Doctor

Ralph Nader’s Public Citizen Health Research Group reports that between 1990 and 2002, 5% of doctors were involved in 54% of the pay-outs for medical negligence reported to the National Practitioner Data Bank, the confidential log of malpractice cases maintained by the U.S. Government. You should do your own research to protect yourself from negligent doctors and find the doctor that is best for you. You are not required to go to the physician to whom you were referred by the emergency room at the hospital or your family doctor.

Check the following web sites to find a doctor, to determine if the doctor is board certified in his/her specialty, and to determine the doctor’s educational background and any history of infractions for personal behavior, drug use, inappropriate sexual behavior, and medical malpractice payouts:

• AMA
• Florida Department of Health.

Check the Brevard County Clerk of Court web site to determine if the doctor has been sued or has a history of infractions such as DUI or domestic violence. Select Public Records, then select eFACTS, then click LOGON.

Obtain A Second Opinion

If a medical problem persists, seek a second opinion. Do not allow a doctor to “reassure you” into complacency. If time permits, you should obtain a second opinion to determine whether the proposed medical procedure or surgery is appropriate for you. A doctor at a teaching hospital associated with a medical school who specializes in your area of medicine would be the best place to seek a second opinion.

Do A Risk-Benefit Analysis

Before you undergo a medical procedure or surgery, find out the risks and complications of the procedure and the percentage of times these complications occur. Also, ask if you are at a greater risk for complications because of your age or other medical conditions. You should learn as much as you can about your disease or injury and the treatment options. The Virtual Hospital from the University of Iowa can help you.

Obtain A Copy Of Your Medical Records

It is important to read your own medical records. There may be reports in your records that show a need for follow up tests or other care. Doctors sometime fail to review x-rays, MRIs, blood tests, and other diagnostic test reports. A review of your records could eliminate a delay in diagnosis and result in treatment that could save your life. Doctors also may take you more seriously if you ask for a copy of your records. Florida Statute 456.057 gives you a right to a copy of your medical records. Florida law allows doctors to charge you $1.00 for the first 25 pages and .25 cents for each page in excess of 25 pages. Diagnostic films must be produced at actual costs.

Find Out Test Results

Do not assume that everything is okay because you did not hear anything after a test is conducted. There are cases where diagnostic tests were performed, the test results were sent to the doctor and filed with the patients medical records without review by the doctor. The test result may contain critical information about a progressive disease that needs immediate care to save your life.

You Need An Advocate

While in the hospital, have a friend or family member stay in the room with you. If possible, have people stay with you in shifts. This way there will be another person to hear the doctor’s explanation and to ask additional questions. You need someone to see that your basic needs are met, such as getting meals, baths and clean clothes. Ask them to verify the medications you are given by the nursing staff. If you can afford it, do what some doctors do: hire a private duty nurse to monitor and assist with your care. It is a known fact that having someone with you results in you receiving more attention and better medical care.

Research Your Medical Condition

By researching your medical condition, you can better understand your treatment options and how to make informed decisions about your medical care. The following web sites are helpful:

• eMedicine
• The Merck Manual Medical Library
• RxList: The Internet Drug Index
• AllRefer Health
• Family Practice Notebook
• Pathology Outlines

Verify Medications

Before taking medications, know which medications are prescribed for you, what each medication is for, how much has been prescribed, how often you should take the medications, and the side effects. Ask the nurse what she is giving you before you take any medication.

Keep A Log

If you can, keep your own log of medications, treatments and tests. If you are unable, ask a friend or loved one to keep a log for you.

Take A List Of Your Medications

If you are on medications, take a list of your medications and dosages with you to the hospital. Make sure your treating doctors and the nurses on each shift are aware of your medications and when you should take them. Make sure the nurse charts each medication as you take it.

Know How To Contact Your Doctor

If you are scheduled to stay in the hospital, discuss with your doctor’s office how you can contact the doctor by phone. You should keep your doctor’s phone number with you so you can call the doctor directly if you have concerns.

Ask Where You Are Going

Before being moved off the floor for a procedure, ask what the procedure is and be sure you understand where you are going and why.

Remove Catheters Before Transfers

Before being moved from one floor to another, or from one institution to another, ask if your urinary catheter and other paraphernalia should be removed. Catheters can pose a risk for infection. In one study, one out of three physicians were unaware that their patient had a urinary catheter.

Do Not Be Passive

If something doesn’t seem right, ask questions. Do not be afraid to take matters into your own hands. By doing so, you may save your own life or the life of a loved one. If your medical concerns are being ignored, contact the head nurse and hospital administrator or seek help from another physician. You can also seek transfer to another hospital.

Insurance You Should Have On Your Motor Vehicle

1. Bodily injury liability (BI) insurance coverage provides compensation for injuries to people injured by your negligence.

2. Property damage liability (PD) insurance coverage provides compensation for property damage to the other party caused by your negligence.

3. Uninsured Motorist (UM) insurance coverage provides compensation for bodily injury damage if the driver at fault is not insured. If there is no bodily injury insurance or uninsured motorist insurance coverage to pay for your damages, you probably will not receive any compensation for your damages. Drivers who do not have insurance usually do not have assets to pay for your damages. MANY CAR OWNERS DO NOT HAVE BODILY INJURY COVERAGE TO PAY FOR DAMAGES TO YOU CAUSED BY THEIR NEGLIGENCE. WE STRONGLY RECOMMEND UNINSURED MOTORIST COVERAGE. YOU SHOULD STACK COVERAGE IF YOU OWN SEVERAL VEHICLES.

4. Underinsured Motorist (UM) insurance coverage provides compensation for bodily injury damages in excess of the other driver’s insurance.

5. Personal Injury Protection (PIP) insurance coverage pays 80% of medical bills and 60% of lost wages up to $10,000.00. WE STRONGLY RECOMMEND NO DEDUCTIBLE.

6. Medical Payment insurance coverage pays medical expenses not covered by your Personal Injury Protection insurance coverage.

7. Collision insurance coverage pays for damages to your car when other party has no insurance or the damage is caused by you.

8. Comprehensive insurance coverage pays for damages to your car caused by storms, fire, theft, or vandalism.

Medical Malpractice

An action for medical malpractice is a claim for damages by a person arising out of any medical, dental or surgical diagnosis, treatment or care by a health care provider. A plaintiff in a malpractice action is generally suing on the basis that the health care provider breached the prevailing professional standard of care. The prevailing professional standard of care for a given health care provider is 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.

Physicians are not insurers of the success of their treatment. The fact that an operation was not a success does not create an issue on the charge of medical negligence. Negligence cannot be inferred from the fact that a surgery was unsuccessful or it had unfortunate results. In order to prevail, the patient must show that the physician breached the standard of care.

Failure to make a diagnosis can be a breach from the prevailing professional standard of care. In order to bring a claim there must be damages because of the delay in treatment caused by the failure to make a diagnosis. For example, if a patient already had cancer that was terminal at the time of examination, the failure to diagnose did not cause further damage. The failure to diagnose did not change the outcome for that patient since the condition was already terminal at the time of the failure to diagnose.
A physician may also be held liable for discharging a patient without arranging for further medical attention. If the physician knows or should know that the treatment he is providing is failing to arrest the patients condition and the patient’s condition is growing worse that physician may be liable for the additional injury or death caused by his failure to properly treat.

The medical malpractice Statute of Limitation is two (2) years from the date you knew, or should have known, with the exercise of due diligence, the injury was caused by the malpractice act itself, but no more than four (4) years from the date of the incident. However, our Supreme Court of Florida has stated that the Statute of Limitations begins to run when the injured party should have known either of the injury or of the negligent act, WHICHEVER OCCURRED FIRST. As a consequence, the Statute of Limitations, as interpreted by the Florida Supreme Court, requires an action for medical malpractice be commenced within two (2) years of the date you first discovered the injury, even though you may not necessarily have suspected it was caused by malpractice. If you do not pursue an action within the period of time and comply with the medical notice provisions of Florida Statute 766, you will be forever barred from doing so by the Statute of Limitations.

Fraudulent concealment by a physician or other health care provider of fact showing negligence so as to prevent the patient from discovering their cause of action will toll the statute of limitations until the facts of said fraudulent concealment can be discovered through reasonable diligence. Where it can be shown that fraud, concealment of intentional misrepresentation of fact prevented the discovery of the injury within the four year repose period, the statute of limitations is extended forward two years from the time the injury is discovered or should have been discovered with the exercise of due diligence but in no event to exceed seven years from the date of the incident giving rise to the injury.

If you would like to discuss your case with an attorney, please contact our office.

Payment of Medical Bills & Lost Wages

Under the No Fault Law of Florida, your insurance company pays for a portion of your medical bills and lost wages regardless of who was at fault. That is why the law is referred to as “No Fault”. Payment is not determined by who was at fault in causing the motor vehicle accident. The Personal Injury Protection benefits payable to you under your motor vehicle policy are often referred to as “P.I.P.” or “PIP”. The limit for No Fault Personal Injury Protection benefits is $10,000 per person for loss sustained as a result of bodily injury, sickness, disease or death arising out of the ownership, maintenance or use of a motor vehicle. PIP pays 80% of medical benefits for all reasonable expenses for necessary medical care. PIP also pays 60% of disability benefits for any loss of gross income and loss of earning capacity from inability to work because of an injury sustained in an accident. Disability benefits also cover all expenses reasonably incurred for household services that if not for the injury, the injured person would have performed. Benefits must be paid not less than every two weeks. PIP pays $5,000 for individuals in death benefits. If you have Medical Payments coverage under your auto insurance policy, then the Medical Payments coverage will be secondary to PIP coverage. The excess medical expenses, the 20% not covered by PIP, may be covered by the additional Medical Payments coverage. However, these benefits cannot be used toward the PIP deductible.

PIP deductibles come in various amounts. You need to review your insurance policy in order to determine the amount of deductible you have with your motor vehicle policy. PIP deductibles are taken from the amount payable for medical and disability benefits. For example, if you have a $10,000 medical expense, PIP pays 80% which is $8,000. If your deductible is $2,000, the $2,000 is deducted from the $8,000. Your benefit amount is now $6,000.

Note, however, that these deductibles are not applied to reduce the amount of death benefits. PIP benefits are primary over other insurance coverage except Worker’s Compensation and benefits fully payable as loss accrues and reasonable proof of loss and the expense are provided. Before PIP benefits are paid, an insurer may require written notice be given as soon as possible after your accident involving a motor vehicle. If you are injured as a result of a motor vehicle accident, you should immediately contact your insurance company’s claim office and request an Application for Personal Injury Protection Benefits. PIP benefits are overdue if not paid within 30 days after the insured provided written notice of a covered loss and the total amount of the claim.

Slip and Fall

A slip and fall case falls under the area of premise liability. Liability is based on the negligence of the property owner or occupant by allowing the existence of a dangerous condition. The owner or occupant is not considered an insurer of the safety of persons who enter on the premises. The only exception to this is certain abnormally dangerous uses of the property. Before an owner or occupant can be held liable for the injury of someone, we must be able to show that the owner or occupant was negligent.

Negligence is defined as a failure to use reasonable care. A dangerous condition must exist for a sufficient length of time for it to have noticed and remedied in order to hold the owner or occupant liable. For example, if you are walking in a grocery store and someone in front of you drops a banana peel on the floor and seconds later you step on the banana peel and fall, the grocery store is not liable for your injuries. You must be able to show that the grocery store owner had notice of the dangerous condition, had an opportunity to correct the dangerous condition before you fell. If a store employee dropped a banana peel, the owner had notice of the dangerous condition. Knowledge of the employee is imputed to the owner of the store. If a banana peel is black and shows evidence of track marks, such evidence illustrates that the banana had been on the floor for some length of time. Such evidence can be used to show that the owner knew or should have known about the banana peel.

An owner of the premises may also be liable for defects in design or construction of a building. For example, an owner of the premises may be liable because a stairway was not constructed in accordance with the building code.

You may be entitled to payment of your medical bills even if the owner is not negligent. The owner of the premises may have purchased medical payments coverage under the Owner’s Liability Insurance coverage. Medical Payments Coverage pays the medical expenses of a person injured on the premises regardless of who is at fault. If you have been injured, you should immediately contact the owner and notify him of your injury and request that he notify the insurance company of your injury. You should ask if Medical Payments coverage is available. You may be entitled to payment of your medical bills even though the owner was not negligent.

The Statute of Limitations for a slip and fall case is 4 years. If you wish to bring a claim, you must file your lawsuit within 4 years of the date of an accident.

Social Security

Social Security pays cash benefits to people who are unable to work for a year or more because of a disability. Benefits continue until a person is able to work again on a regular basis. It is important that you understand how Social Security defines disability. Disability under Social Security is based on your inability to work. You will be considered disabled if you are unable to do any kind of work for which you are suited and your disability is expected to last for at least a year or to result in death. You should apply at any Social Security office as soon as you become disabled. However, Social Security disability benefits will not begin until the sixth full month of disability. This waiting period begins with the first full month after the date Social Security decides your disability began.

If your claim is denied, you may appeal the decision. The first level of appeal is Reconsideration.

Social Security will help you complete the paperwork for a Reconsideration action. If your claim is denied after Reconsideration, we suggest you contact our office for an appointment and we will help you file an appeal for a hearing with an Administrative Law Judge. An Administrative Law Judge is an independent official of the Office of Hearings and Appeals. The Administrative Law Judge has not had any part in your case. If, after the hearing and the decision rendered by the Administrative Law Judge, you feel the decision is wrong, you may request an Appeal by the Appeals Council which is located within the Office of Hearings and Appeals. We can help you fill out the special form which is required for either a hearing before an Administrative Law Judge or a review before an Appeals Council.

Generally, you have 60 days after you receive notice of the decision of the Social Security office to ask for any type of an appeal. In counting the 60 days, Social Security presumes that you received the notice 5 days after it was mailed unless you can show that you received it later. If you do not appeal in time, the Administrative Law Judge or the Appeals Council may dismiss your appeal. This means that you may not be eligible for the next step in the appeal process and you may also lose your right to any further review. You must have a good reason if you wait more than 60 days to request an appeal. If you file an appeal after a deadline you must explain the reason you are late and request that Social Security extend the time limit. We can explain this further and help you file a written request to extend the time limit.

After you request a hearing, your Social Security office sends your case file to the Administrative Law Judge’s office. Although the Administrative Law Judge attempts to schedule all hearings promptly, there may be considerable delay of your case. At least twenty days before the hearing, the Administrative Law Judge will send you a Notice of Hearing telling you the date, time and place of the hearing.

Attorneys’ fees in Social Security cases are handled on a contingency basis according to a fee schedule approved by Social Security. If your case is won, attorneys’ fees will be 25% of the total past due benefits which are awarded to you and your family or $5,300, whichever is less. No attorney fee will be charged if you do not win. The payment of attorney’s fees must be approved by the Administrative Law Judge.

What to Do After A Motor Vehicle Accident

1. STOP: You must immediately stop at the scene of the accident.

2. DO NOT OBSTRUCT TRAFFIC: You must stop without obstructing traffic more than is necessary. If a damaged vehicle is obstructing traffic, the driver must make every reasonable effort to move the vehicle so as not to block traffic.

3. PROVIDE REQUIRED INFORMATION: By law you must provide the other driver with your name, address and vehicle registration number, and show him your driver’s license. You are entitled to the same information from the other driver. Ask to see his driver’s license and write down his name, address, and license number. You are required to provide the investigating officer with the facts of the accident. Statements made to the officer to assist the investigation are privileged and cannot be used against you in court.

4. NOTIFY POLICE: You must notify the nearest police authority of an accident resulting in injury or death to a person or property damage.

5. DO NOT ADMIT FAULT: You should not admit you caused the accident at the scene of the accident. Such admissions may not be accurate in the excitement of the moment. Refrain from admitting fault until all facts are in. Do not discuss the accident with anyone except the investigating officer, your insurance representative and your attorney. Statements made to the investigating officer cannot be used against you in the trial of your personal injury case.

6. OBTAIN INFORMATION: Write down names, addresses and license tag numbers of persons involved and names and addresses of witnesses. If a witness will not give you his or her name, write down the automobile license tag number.

7. UNATTENDED ACCIDENT: If you are involved in an accident with a vehicle or other property which is unattended, you should immediately stop and notify the owner and provide your name, address and motor vehicle registration number. If you cannot locate the owner, you should attach in a conspicuous place in or on the vehicle or other property a written notice giving your name, address and motor vehicle registration number and immediately notify the nearest police authority.

8. RENDER AID: You have a duty to render aid to any person injured in an accident.

9. SEEK MEDICAL TREATMENT: You should immediately seek medical treatment if you are injured. Even a minor accident can cause permanent bodily injury. Pain often occurs the day after the accident. You can sustain a serious injury even if you do not have a broken bone. When a bone is broken, it heals and becomes stronger. Injury to muscles, ligaments, and tendons can heal as scar tissue that is weaker and more susceptible to further injury. You can sustain a concussion during a motor vehicle accident without a direct blow to the head due to the rapid acceleration or deceleration of the head with resulting loss of cognition – memory, planning, perception and sensation.

10. CONTACT INSURANCE COMPANY: You should contact your insurance company claims office immediately after the accident. Failure to immediately report the accident can result in the insurance company refusing to pay a claim. Your motor vehicle policy will pay 80% of your medical bills and 60% of lost wages up to $10,000.00 regardless of who is at fault. If you are involved in a motor vehicle collision that is covered by worker’s compensation, you should still immediately contact your insurance company since you may have additional insurance coverage.

11. TOW CAR: If you car is not driveable, have it towed to a local repair shop and ask for an explanation and written receipt of towing and storage costs.

12. PHOTOGRAPH CAR: Photograph the damage to your motor vehicle.

13. PHOTOGRAPH INJURIES: Photograph your injuries.

14. WRITE DOWN DETAILS: Write down details of the accident. Note the location of skid marks, broken glass, and positions of the motor vehicles.

15. MAINTAIN A DIARY: Write down details of your injuries and how these injuries are affecting your ability to work, sleep, and perform routine activities.

16. DO NOT RUSH INTO SETTLEMENT: Do not rush into a settlement. Injuries often become more painful with the passage of time. Consult an attorney to safeguard your rights. There is usually no charge for an initial consultation if you are injured as a result of the negligence of another party.