We rely on medical providers to deliver effective healthcare to heal our injuries or cure our ailments. This requires medical providers to render treatment within the accepted standard of care that we can expect from other similar providers to do for us in similar situations. Most of the time we receive this level of care and treatment. However, this is not always the case. Sometimes a healthcare provider can leave us in a worse position with new injuries, disability, or even cause the death of a loved one. Despite this, healthcare providers use many common defenses to medical malpractice claims in an effort to escape liability and protect their license. Some insurance carriers and defense lawyers will assert rigorous defenses in an effort to protect dangerous doctors or healthcare providers.
Medical Malpractice is a Serious Problem in the United States
The problem is bigger than most people may imagine. According to a study from John Hopkins University, preventable medical errors are the third leading cause of death in the United States behind only heart disease and cancer. This amounts to more than 250,000 Americans dying each year due to preventable medical mistakes or errors. However, another study estimated this figure to be much higher, even as high as 440,000 preventable deaths due to medical mistakes each year. What is most concerning about these statistics is that they are just measuring wrongful deaths due to preventable medical errors. Thus, these statistics do not include individuals who are injured but do not die due to medical malpractice.
In Florida, the National Practitioner Data Bank (NPDB) provides in the last year there were over 7,200 adverse action reports and medical malpractice payment reports filed in just the Sunshine State. An “adverse action” is any report, complaint, or legal action filed against a physician. This database does not include claims filed against hospitals, practice groups, nurses, physician assistants, nurse practitioners, or other providers who are not medical doctors. As a result, the true number of adverse actions against healthcare providers in just Florida is likely to be much higher—and much more concerning.
The problem with determining the true number of medical malpractice cases relies on the fact that healthcare providers are often the ones who control that data. For them to report injuries or death caused by medical mistakes, it could place their license and livelihood on the line. This incentivizes them to hide medical errors or use defenses to medical malpractice claims to escape liability. Some commenters have even stressed to the Centers for Disease Control (CDC) to make changes to how the cause of death of a patient could be reported.
Anatomy of a Medical Malpractice Claim in Florida
To understand the common defenses used in a medical malpractice case, one must first have a general understanding of medical malpractice. Most personal injury claims are based on a type of cause of action (or claim) called “negligence.” Medical malpractice cases are also based on negligence and occur when a healthcare provider’s negligent act or omission causes an injury to a patient. In determining whether a healthcare provider’s act or omission was negligent, he or she is measured against the “standard of care.” In order to establish liability against a healthcare provider such as a doctor, hospital, nurse, or other providers, a victim must establish a violation of or deviation from the standard of care. This is what most medical malpractice cases revolve around.
How the standard of care is established is codified in Florida law, which provides under Florida stat. section 766.102 (1) that “[t]he prevailing professional standard of care for a given healthcare 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.”
While a victim or family will be fighting to establish the standard of care and how the defendant violated it, there are a slew of common defenses to medical malpractice cases used by defense lawyers. Many of these defenses are strong and require an experienced medical malpractice lawyer in Florida like ours at Prosper Shaked Accident Injury Attorneys PA to overcome the defense. Some of these defenses are based on the elements of negligence and medical malpractice, while other defenses are based on the merits or procedure.
Most Common Legal Defenses in Medical Malpractice Cases
Some of the most common defenses to medical malpractice cases in Florida include the following:
Not Below the Standard of Care/Not a Deviation
Naturally, the first defense will be that the healthcare provider’s conduct was not below the standard of care. The defense will argue that the healthcare provider’s actions were acceptable under the standard of care or even exceeded what a reasonably prudent healthcare provider would have done in similar circumstances. This is usually asserted by the defendant, a healthcare provider, as well as an expert on the defense side.
The victim, however, is often not a healthcare provider and therefore must hire an expert to determine what the standard of care was and how the defendant failed to meet that standard of care. As you can already see, in a medical malpractice case the defense already has a “free” expert in that the defendant can opine to the standard of care but the victim must hire an expert.
Oftentimes this means that there are more individuals on the defense side arguing that the standard of care was met as opposed to the plaintiff’s side. This is why you need an experienced medical malpractice lawyer like ours in Miami, Florida at Prosper Shaked Accident Injury Attorneys PA.
The next most common defense used in medical malpractice cases is no causation. This is referring to the elements of negligence which require a plaintiff to establish 1) a duty of care (standard of care), 2) a breach of that duty (breach of the standard of care or deviation from the standard of care), and that 3) the breach caused 4) damages to the plaintiff.
Thus, defense lawyers will argue that, even if there was a deviation from the standard of care, that the deviation was not the proximate cause or a substantial factor in causing damages to the plaintiff. Essentially, the defense is arguing that the mistakes by the healthcare provider did not cause your injuries. They may even blame your injuries on natural outcomes.
Rounding out the defenses based on the pure elements of a negligence case, if a deviation from the standard of care and causation were established, defense lawyers will then argue that the plaintiff did not sustain any damages from the medical provider’s mistake. This commonly comes up in cancer misdiagnosis cases, where a defense will argue that the delay in diagnosing a patient’s cancer did not cause any further or additional damages than what the victim was already experiencing, i.e., that the victim still had cancer and needed to undergo chemotherapy, radiation, surgery, or other treatment. Defendants also exercise a “catch-22” situation, and claim if the patient dies that the patient’s cancer was terminal even when it could have been diagnosed. Or if the patient survives, the defense will argue that there are no damages because the patient lived.
However, an experienced medical malpractice lawyer like our missed and delayed cancer treatment lawyer in Florida knows these arguments are attenuated. Many times the delay of a cancer diagnosis could increase the intensity of treatment needed and the conscious pain and suffering of a patient. In wrongful death cases, we can hire experts to establish whether the patient’s cancer was terminal when it was first missed or delayed in diagnosis. Further, when a patient survives, the delay in cancer treatment could increase the future risk of cancer reoccurring and it being more more aggressively or likely to be fatal. Thus, these are damages that less experienced lawyers may miss.
Outside of the elemental defenses relating to just “negligence,” defense lawyers often claim that the injuries sustained by a victim were the “natural consequences” of treatment or the victim’s condition. Thus, defense lawyers will argue that they cannot be liable for natural consequences such as birth complications that they claim were “unavoidable.”
Never fall for this trick, as most complications and natural consequences can be avoided with proper monitoring, assessment, evaluation, and treatment. Medical doctors often use this lingo or buzzword right to your face after complications arise. If you heard this phrase, contact our lawyer immediately because it is often a red flag.
Assumed Risk of the Procedure/Patient Gave Informed Consent
Another very common defense is that the patient consented to the risks of the procedure and therefore “assumed the risk” of the complications. Most of us are familiar with this principle, particularly for medications advertised on TV that list every possible side effect. In a medical procedure, these risks are also listed and signed before the procedure in a similar fashion.
While this can be an absolute defense, most times the risks are actually not explained to the patient before the surgery. Sometimes providers forget, other times they remember after the patient has been administered a sedative like Versed (Midazolam) and cannot give actual consent due to the effects of the drug. Further, some attempts to explain the risks of the procedure are ineffective entirely if a procedure extends beyond what the patient gave informed consent for. Most importantly, a patient does not give informed consent and does not assume the risk for negligent medical care or treatment errors.
It is well-established that a healthcare provider cannot guarantee a particularly outcome. Defense lawyers will often argue this when a basic procedure goes wrong in an effort to make a jury believe that nothing is guaranteed. While this can be a good defense in certain instances, oftentimes it is a horrible excuse for negligent conduct. Make sure to hire a lawyer that knows how to effectively diffuse this argument and turn it around on the defense, i.e., that it was a basic procedure that is rarely botched, suggesting negligence or gross negligence.
Defense lawyers often try to claim a patient’s pre-existing condition or co-morbidities were the cause of an adverse health result. While this sounds like a reasonable contention, it reality this is often a horrible argument because a healthcare provider should know or should have known about a patient’s pre-existing conditions or co-morbidities prior to a procedure or surgery, and taken them into account when rendering care. The fact that a patient may have a condition like diabetes, high blood pressure, is obese, or any other condition cannot be used as a shield to downright negligent conduct. Some inexperienced medical malpractice lawyers may fall prey to this defense, but our experienced team at Prosper Shaked Accident Injury Attorneys PA know how to fight back against this common defense and even turn it around on the defense, i.e., why did you perform surgery when you did not know relevant information about a patient’s health.
Some defense lawyers will actually blame the patient for his or her injuries by claiming that the patient was non-compliant with medical instructions. This often comes up in hospital falls where a patient gets out of bed and falls suffering catastrophic injury. While at first glance this may appear to be the patient’s fault, some patients are “fall risks” and it is the duty of the hospital and healthcare provider to guard against foreseeable injuries to fall risk patients.
Other times the reason why the patient tried to get up himself or herself is because no healthcare provider answered repeated calls for assistance and the patient had to take self-help remedies. Both situations are not a non-compliant patient, but a negligent healthcare provider. Do not let this type of defense derail your claim.
Another Provider’s Fault (Finger Pointing)
It is not often that a defense lawyer will blame another healthcare provider for the patient’s injuries. This is because that claim is inherently admitting that there has been some type of medical malpractice. But it still happens when a surgeon blames an anesthesiologist for surgical errors, or a nursing home blames a hospital for a pressure sore on a transferred patient.
The most important way to handle this type of common defense to medical malpractice cases in Florida is to ensure your experienced lawyer has commenced a timely action against all providers who may have liability. This will ensure that a defendant is not shifting blame to a party that is outside of the lawsuit. If you have done that, this type of defense will likely serve to help your claim.
Statute of Limitations
The last common defense is a procedural defense, meaning that it is not premised on the merits of your medical malpractice claim. Rather, it is based on a Florida rule of procedure. The statute of limitations is a defense that is asserted in almost every type of lawsuit, especially medical malpractice cases. The statute of limitations if a time limit on filing a lawsuit imposed by the Legislature. All types of lawsuits have different statute of limitations periods, or time limits.
Medical malpractice cases have one of the tightest time limits. While Florida law expressly provides how long a victim and his or her family may have in a statute, that number is often not correct. This is because there are some “tolls” or extensions to the time limit that might apply, such as for birth injury cases. But there are also some instances where the time period may shrink, especially against municipal defendants. These tolls or shrinking time periods are not codified in the same area as the statute of limitations. Some are in other areas of statutory law, and others are in the common law, or judge-made law created through judicial decision writing.
As a result, assessing the time period that you have to file a medical malpractice case is done on a case-by-case basis. All you need to know is that there is a very short time period to file a medical malpractice lawsuit in Florida, and it is never too early to consult with an experienced medical malpractice lawyer to learn how much time you have.
Prosper Shaked Accident Injury Attorneys PA is the Experience Choice You Need for Medical Malpractice Cases
We will not let defense lawyers use common defenses to medical malpractice cases to escape liability after harming a patient. Medical malpractice is a huge problem in the United States, and we are fighting to change that on patient at a time.
If you or a loved one suffered any personal injuries due to the negligence of a healthcare provider in Florida, learn how our experienced medical malpractice lawyers at Prosper Shaked Accident Injury Attorneys PA can help protect your rights to compensation under the law. We offer a FREE case evaluation which you can schedule by calling (305) 694-2676. We are here to help and look forward to speaking with you.