Hospitals and physicians are insulated by laws that offer more support to them than to the patients they treat. Organizations like the American Medical Association (AMA), along with other larger, socio-economically sophisticated organizations, lobby for the laws providing that very insulation. And while the AMA is a legitimate organization that is well-recognized nationally, the very purpose of the organization is to generate legislation and laws to protect medical professionals from otherwise being held liable for medical error.

Is This Fair?

“FAIR” and “LEGAL” are two very different concepts. Just because a doctor makes a mistake, doesn’t mean that the doctor has committed medical malpractice.  It very much depends.

Let’s say a baker is making cake. The baker has a duty to use all edible ingredients, keep a clean kitchen and all the basics. This would be the baker’s “standard of care”. Let’s say the baker deviates from this and chooses to use a plastic tube in the cake because they are making a three-tiered cake which requires support to stand upright. No one eats the plastic, because they know it’s plastic, and all is fine. The baker didn’t use all edible ingredients, but no one got hurt. No issue here for the baker and no issue here for those eating the cake.

On the flip side, if the baker followed the standard of care, but someone got sick because they have a gluten sensitivity and didn’t read the ingredients of the cake, then there’s no fault for the baker either. This happens all the time in hospitals. Surgeries and elected treatments come with long pages of risks, and we sign those pages understanding and acknowledging those risks. So, if a doctor follows protocol, and otherwise complies with the standard of care, the doctor is normally not subject to liability simply because the patient suffers a poor outcome. 

So, When Does an Adverse Outcome Constitute Medical Malpractice?

When the standard of care is deviated and this causes harm to a patient, then medical malpractice has occurred. The next steps are complicated, and compiling the proof is part of the long process that follows.

In cases where medical negligence occurs, and harm is caused to a patient, doctors are still provided greater insulation than other Defendants who are negligent because special laws that have been created for the benefit of medical professionals. Before a patient is eligible to prosecute a claim against a medical professional, there is a significant and very burdensome due diligence that is required.  A patient is required under Florida law to expend significant expense, and garner significant evidence, before that patient is permitted to even place the potential physician defendant on notice that he is suspected of committing medical malpractice.

When the negligent medical professional is, for example, a board certified, general surgeon who is suspected of medical malpractice, then testimony of another board certified, general surgeon is required to explain 1) what it was that was done wrong;  and 2) to clinically correlate, within a reasonable degree of medical certainty,  that error with an injury that was suffered. While this could seem black and white, it’s not so simple as with a speeding ticket. Demonstrating sufficient proof for medical malpractice cases is arduous and costly. And while the truth of the matter could be that negligence occurred and directly caused harm, sufficient proof is required to warrant prosecution or satisfy the burdens of the statute.

You may have heard about the Johns Hopkins study claiming more than 250,000 people in the US die every year from medical errors. Other reports claim the numbers to be as high as 440,000. That would make it the fourth leading cause of death for Americans behind heart disease, cancer and covid. And this isn’t even for surgeries, but just medical errors. A vast amount of these cases are not medical malpractice cases, and those that are, even less have proof to substantiate the claims.

How Hard Is It to Win a Medical Malpractice Case?

Medical malpractice cases are some of the most difficult cases to try because of the legislation protecting the physicians. There are layers and layers of insulation provided to medical professionals thus making it more difficult for the patient to satisfy the burdens necessary to assert a claim for medical malpractice.

This is why hiring a law firm that possesses the experience, resources and credentials for handling medical malpractice cases is paramount. At MANEY | GORDON Trial Lawyers, we’ve spent decades prosecuting medical negligent cases.  While so many other law firms have elected to steer clear of these expensive, complicated, and burdensome cases, we specialize in them. The expert attorneys at MANEY | GORDON Trial Lawyers continue to maintain their passion for the intricacies of the science and the complexities of medical malpractice law.  Our team includes Jose Estrada, an experienced trial attorney who has also spent decades as a licensed Physician’s Assistant recognized by the Florida Board of Medicine. Our team also includes state and nationally accredited Board Certified Civil Trial Lawyers like Fritz Gray, and Jeffrey “Jack” Gordon. Furthermore, Mr. Gordon is nationally Board Certified in Medical Malpractice and was recently inducted into the Florida Trend’s Legal Elite Hall of Fame cementing his legacy as a top-tier lawyer in Medical Malpractice and Personal Injury.

Education is key when it comes to these kinds of cases so having a firm who knows their way around the system is a necessity. Reach out today if you suspect you are a victim of medical malpractice because hospitals and physicians have big armies fighting for them. It’s time you had one as well.