Medical malpractice is a big problem that shakes people’s trust in healthcare. It is sad because lots of people suffer physically, emotionally, and financially because of it every year. MalpracticeSearch.com, a nationally recognized database that records every healthcare provider’s malpractice payments made since 2004, reports that Florida saw 1,277 malpractice payments in 2022. The average payment was $314,687 and the most common allegation was “failure to diagnose.”  

When doctors or nurses do not do their jobs right—maybe they make mistakes, are not careful enough, or do something wrong—it can have serious consequences. Victims of medical malpractice are left feeling vulnerable and hurt, not just from their injuries but also because they must figure out how to make things right. Medical malpractice may be costly to victims. They may be responsible for medical expenses, lost wages, pain and suffering, and other medical costs, such as transportation, massages, and medical equipment and furniture. 

After something goes wrong with medical treatment, victims often get tangled up in confusing legal stuff. It is like getting lost in a maze of rules and paperwork, especially when you are already dealing with being hurt or losing someone you love. Without knowing how the legal system works, victims can feel lost and not know what to do next. That is why it’s really important for them to understand how a medical malpractice lawsuit works—it gives them the tools they need to stand up for themselves and get the compensation they deserve. 

Knowing this roadmap is not just about understanding the legal stuff better—it is about giving victims hope that they can find justice and closure in a tough situation. 

1. Determining If You Have Been a Victim of Medical Malpractice

The first step is recognizing when medical malpractice might have occurred. This involves understanding that not all negative outcomes constitute malpractice. Malpractice arises when a healthcare provider deviates from the accepted standard of care, leading to injury or harm that would not have occurred otherwise. 

Here are some key indicators to watch out for: 

• Unusual or Unexpected Outcome: If your condition worsened despite seeking medical attention, or if you experienced new complications following treatment, this may be medical malpractice. 
• Lack of Informed Consent: Informed consent is a fundamental aspect of medical practice. If you underwent a procedure without fully understanding the risks involved or without giving consent, it may constitute medical malpractice. 
• Failure to Diagnose or Misdiagnosis: Errors in diagnosis are common but can have severe consequences. If a healthcare provider fails to diagnose a condition in a timely manner or misdiagnoses it altogether, resulting in delayed treatment or unnecessary procedures, it could be considered malpractice. 
• Substandard Treatment or Care: Medical professionals are expected to adhere to a certain standard of care. Any deviation from this standard that leads to harm or injury may be indicative of malpractice. This can include surgical errors, medication errors, improper monitoring, or neglectful care. 
• Disregard for Patient History or Symptoms: Ignoring pertinent patient history, dismissing symptoms, or failing to follow up on alarming test results can all contribute to medical malpractice. Healthcare providers have a duty to thoroughly assess and address patient concerns. 
• Documentation Discrepancies: Discrepancies in medical records, such as missing or altered information, can indicate attempts to cover up mistakes or negligence. Reviewing your medical records can provide valuable insight into the care you received and any potential malpractice. 
• Second Opinion Discrepancies: Seeking a second opinion is common practice, especially in complex or serious medical cases. If a second opinion contradicts the initial diagnosis or treatment plan, it may warrant further investigation into potential malpractice. 
• Persistent or Unexplained Complications: If you experience persistent or unexplained complications following medical treatment, it is essential to explore whether these issues could be attributed to malpractice. Chronic pain, infections, or disability resulting from treatment may warrant legal consultation. 
• Communication Breakdowns: Effective communication between patients and healthcare providers is crucial for safe and effective care. If there were communication breakdowns, misunderstandings, or inadequate explanations regarding your treatment or condition, it could contribute to medical malpractice. 
• Legal Consultation: If you suspect you have been a victim of medical malpractice, seeking legal consultation from a qualified attorney specializing in medical malpractice is essential. They can evaluate your case, gather evidence, and advise you on the best course of action.

2. Gather Evidence for Your Medical Malpractice Claim

Before delving into the specifics of evidence gathering, it is crucial to emphasize the indispensable role of a medical malpractice attorney. These legal professionals possess the knowledge, experience, and resources necessary to build a compelling case on your behalf. They understand which pieces of evidence are most persuasive and how to effectively navigate legal proceedings. From conducting thorough investigations to advocating for your rights in court, an attorney is your strongest ally in seeking accountability for medical negligence. 

What Victims Can Gather to Support Their Claims: 

• Medical Records: Request copies of all relevant medical records, including doctor’s notes, test results, treatment plans, and discharge summaries. These documents provide critical insight into the care you received and any deviations from the standard of care. 
• Photographic Evidence: If applicable, take photographs of visible injuries or adverse effects resulting from medical treatment. Visual evidence can be compelling in demonstrating the extent of harm suffered. 
• Prescription Records: Obtain records of any medications prescribed, including dosage instructions and refill history. Discrepancies or errors in medication administration can be indicative of malpractice. 
• Witness Statements: Gather statements from witnesses who observed the events leading to the alleged malpractice or who can attest to the resulting harm. These testimonies can corroborate your account and strengthen your case. 
• Correspondence: Save any communication exchanged with healthcare providers, including emails, letters, or recorded phone conversations. These communications may contain crucial admissions or acknowledgments of negligence. 
• Financial Documentation: Keep track of all expenses related to your medical treatment, including medical bills, receipts for out-of-pocket expenses, and records of lost wages or income. Financial documentation helps quantify the damages incurred as a result of malpractice. 
• Expert Opinions: While not something victims can gather independently, consulting with medical experts who can provide opinions on the standard of care and causation is vital. Your attorney will coordinate expert evaluations to support your case. 
• Diary or Journal: Maintain a detailed diary or journal documenting your symptoms, pain levels, and any challenges or limitations you face because of the alleged malpractice. This personal account can provide valuable insight into the impact of negligence on your daily life. 

3. Get a Qualified Medical Malpractice Lawyer to Take Your Case

Determining if you have a valid medical malpractice claim is not easy. Medical malpractice lawyers will help figure this out. They will look at things like how doctors are expected to act, what caused the problem, and what harm it caused you. Their advice can help you decide if taking legal action is the right move, focusing on cases where you have a good chance of winning. 

Here are some ways attorneys can help you pursue your claim: 

• Access to Experts – To win a medical malpractice case, you often need special help and expert opinions. Lawyers have connections to medical experts, investigators, and other specialists who can back up your case. These professionals can explain medical standards or calculate the money you lost because of the mistake, making your case stronger. 
• Advocacy and Negotiation – Handling a medical malpractice case means dealing with insurance companies, hospitals, and other lawyers. A good lawyer will stand up for you during these talks, making sure your side is heard. They are skilled at negotiating fair settlements and presenting your case effectively in court, aiming for the best possible outcome for you. 
• Emotional Support – Dealing with the aftermath of medical mistakes can be tough emotionally. Lawyers not only handle the legal side but also offer support and understanding. Knowing you have someone on your side can make a big difference, helping you cope with the stress and uncertainty that comes with a malpractice claim. 
• Maximizing Compensation – Medical errors can lead to a lot of costs, including medical bills, lost wages, and pain and suffering. Lawyers work hard to make sure you get all the money you are owed. Whether it is through negotiations or court battles, they aim to get you a fair settlement that helps you recover and move forward with your life. 

4. The Insurer or Self-Insurer will Initiate the Pre-Litigation Review Process

Before you can file a lawsuit, many places require a pre-litigation review. This means presenting your case to a medical review panel to see if malpractice happened. In most cases and in all cases in Florida, it is the defendants who are required to submit the pre-litigation review. Before the insurer or self-insurer can initiate the review, they must be served by certified mail that you intend to make a claim or sue. The insurer or self-insurer must investigate and review claims during a 90-day period.  

In Florida, there is a set time for this review. For example, after getting a Notice of Intent (NOI), the Prospective Defendant has 90 days (about 3 months) to finish investigating liability. In contrast, the discovery period during the lawsuit can take years. These statutes can be complicated but must be followed precisely. This is why having an experienced attorney to represent your case is so important.  

 5. The Medical Malpractice Lawsuit will be Filed with the Courts

Once the pre-litigation review concludes, either with favorable results or if it is not necessary in some jurisdictions, the process proceeds to filing the lawsuit. This pivotal step entails initiating legal action by submitting a formal complaint outlining the allegations of malpractice against the defendant healthcare provider. The complaint serves as the initial legal document that sets forth the plaintiff’s claims, detailing the specific acts of negligence or breaches of duty committed by the defendant. Additionally, it typically includes a request for compensation, or damages sought by the plaintiff for the harm suffered because of the alleged malpractice. 

In filing the lawsuit, plaintiffs rely on their legal representation to navigate the intricacies of the legal system and ensure that all procedural requirements are met. Attorneys play a crucial role in drafting and filing the complaint, adhering to relevant statutes of limitations, and serving notice to the defendant. Moreover, they work closely with plaintiffs to gather evidence, prepare legal arguments, and advocate for their best interests throughout the litigation process. From initiating the lawsuit to pursuing negotiations or litigation in court, this stage marks the formal commencement of legal proceedings aimed at holding the defendant accountable for the alleged medical malpractice.

6. The Discovery Phase is One of the Most Critical and Drawn-Out Phases

The discovery phase, a crucial stage in the legal process, allows both parties involved in the lawsuit to exchange pertinent information and evidence. This phase serves as an opportunity for each side to uncover facts, assess the strengths and weaknesses of their case, and gather evidence to support their arguments. Through various means such as depositions, where witnesses provide sworn testimony, interrogatories, written questions exchanged between parties, and requests for documents, both plaintiffs and defendants engage in thorough information gathering to bolster their respective claims or defenses. 

During this phase, attorneys play a pivotal role in strategizing and executing the discovery process on behalf of their clients. They meticulously review documents, analyze testimony, and conduct interviews to uncover any relevant information that may strengthen their case. Additionally, attorneys work to ensure compliance with procedural rules and deadlines governing the discovery process, facilitating the exchange of information between parties while safeguarding their clients’ rights. As both sides engage in a comprehensive exploration of the facts and evidence surrounding the case, the discovery phase sets the stage for informed negotiations or, if necessary, litigation in court.

7. Medical Malpractice Settlement Negotiations May Begin

The discovery phase may end in a settlement. Often, they do. If the claim is legitimate, most insurers are not going to risk arguing it in front of a judge and risking paying more by order of a jury. It is after discovery they may offer a settlement and it is up to the victim to accept or deny this settlement offer. There may be a back and forth for settlement negotiations. If a settlement cannot be agreed upon, the case will continue and move toward court proceedings. A settlement offers both sides the opportunity to reach a mutually agreeable resolution without the uncertainties and expenses of a trial.

8. If There is No Settlement, There May be a Trial

If settlement negotiations prove unsuccessful, the next course of action is proceeding to trial. In this phase, both parties present their evidence, witnesses, and arguments before a judge and/or jury. The trial serves as an opportunity for each side to advocate for their position and persuade the court of the merits of their case. Throughout the proceedings, the judge ensures that the trial adheres to legal procedures and rules, facilitating a fair and impartial resolution. 

During deliberation, the court carefully considers the evidence presented, evaluates witness testimony, and applies relevant laws to reach a verdict. The decision rendered by the judge or jury is based on the preponderance of evidence and the application of applicable legal standards. Whether through negotiation or litigation, the resolution of the trial marks the conclusion of the legal process, providing closure to the parties involved in the medical malpractice dispute.

9. All Parties Have the Option to Appeal

After a trial, either party retains the option to appeal the court’s decision if they believe that legal errors occurred during the proceedings. Appeals are made to a higher court, where arguments are presented for review, and there is a possibility of the verdict being reconsidered. This process allows for a thorough examination of the trial proceedings, ensuring that justice is served and that any potential errors are rectified. 

During the appeals process, parties present legal arguments and pertinent evidence to support their position. The higher court carefully reviews the trial record, assesses the arguments presented, and determines whether any errors warrant a reversal or modification of the original verdict. Appeals provide an avenue for parties to seek a fair and just resolution, even after the conclusion of the initial trial.

10. Compensation for Your Medical Malpractice Case

In medical malpractice cases, compensation for the victim’s damages can be pursued through various avenues, including settlement offers and court awards. Settlement offers often arise during the pre-trial phase, where parties engage in negotiations to reach a mutually agreeable resolution. In these negotiations, the defendant, typically represented by their insurance company, may offer a monetary settlement to the plaintiff as compensation for their injuries and losses. Settlement offers provide a quicker resolution to the case, avoiding the time and expense of a trial, and offer the advantage of certainty regarding the outcome. 

Alternatively, if the case proceeds to court and a judge or jury renders a verdict in favor of the plaintiff, compensation may be awarded through a court judgment. In this scenario, the court evaluates the evidence presented during the trial and determines the extent of the plaintiff’s damages. Compensation awarded by the court may include medical expenses, lost wages, pain and suffering, and other economic and non-economic damages incurred because of the medical malpractice. Court-awarded compensation aims to provide fair and just recompense for the plaintiff’s losses, holding the defendant accountable for their negligent actions. While court awards may take longer to obtain and are subject to the uncertainties of litigation, they offer the advantage of being legally enforceable and not subject to the discretion of the defendant or their insurance company.

11. The Final Step in Your Medical Malpractice Case is Closure and Recovery

Regardless of the lawsuit’s outcome, closure and recovery are essential for victims. This may involve ongoing medical treatment, therapy, and support to address physical, emotional, and psychological effects resulting from the malpractice. 

Navigating a medical malpractice lawsuit can be overwhelming, but with the right knowledge and legal support, victims can pursue justice and obtain the compensation they deserve. Understanding the step-by-step process is crucial for empowering victims to assert their rights and hold negligent healthcare providers accountable for their actions. 

Coretta Anthony-Smith

Coretta specializes in handling various insurance disputes and personal injury cases, holding licenses to practice law in all Florida counties and federal courts. Actively engaged in legal committees and community service organizations, Coretta is dedicated to making a positive impact both in and out of the courtroom. Additionally, she was a contributing editor on the Tenth and Eleventh Editions of The Florida Bar’s, Florida Automobile Insurance Law, No-Fault Insurance (2018 and 2019).