Make Sure Your Negligence Case Isn’t Really Medical Malpractice

When you are injured by a doctor or in a medical setting, you may just assume that your case is one for medical malpractice. But before you just make that assumption, it[s important to understand whether you were actually injured by medical malpractice, or other ordinary (non-medical malpractice) negligence.

Why it Matters

But why does this even matter? Why, before a case starts, should a good personal injury or malpractice attorney make sure that your case is actually one for medical malpractice?

The answer is because in Florida, there is a complex set of steps that must be followed, before a medical malpractice lawsuit is filed. This includes an exchange of records, and certain settlement negotiations. These are not requirements in normal, ordinary malpractice cases.

That means that if you just assume that your case is ordinary negligence, and you bypass those steps, and later it turns out the case should have been one for medical malpractice, your case will get kicked out of court, for not following the presuit medical malpractice requirements.

Not Easy to Tell

The difference between negligence and medical malpractice is not always so easy to see. Many times, the line can be blurred.

For example, nursing homes render a combination of regular, routine life care, but also some degree of medical care, administering medicine or performing therapy. Employees in a mental hospital aren’t doctors, but will have to have knowledge of ways of helping and assisting the disabled.

Imagine that you are getting an MRI at a hospital. The MRI attendant, as part of the MRI test, tells you to get on the platform to lay down for your scan. But the platform breaks, injuring you.

Certainly, you were in the process of a medical test in a hospital…but the broken platform had nothing to do with medical care, treatment or diagnosis…or did it?

Courts Don’t Give Much Guidance

There is no one easy way to tell the difference. Normally, to be medical malpractice, the injury must have happened with the exercise or application of something that requires some degree of specialized medical skill—in other words, it has to be something that a general, non-medical person, could not or would not do.

The same applies to decisions, such as decisions to give medicine, or to restrain a patient. If the decision requires the application of and knowledge of specialized medicine, it would be considered malpractice and not just ordinary negligence.

The Accident Matters-Not the Actor

Note that it is the event that counts—not the person performing the event. So, for example, if an untrained orderly were to prescribe the wrong medicine, that would be medical malpractice, as the prescription of medicine requires a degree of specialized medical skill, regardless of the fact that the orderly is not a trained medical professional.

Call the West Palm Beach injury attorneys at Pike & Lustig today if you are injured on someone else’s property or by the malpractice of a doctor or hospital.

Sources:

sog.unc.edu/sites/default/files/additional_files/Rule%209%28j%29%20Special%20pleadings%20rule%20in%20med%20mal%20actionsUSE.pdf

casetext.com/case/sturgill-v-ashe-meml-hosp

caselaw.findlaw.com/nc-court-of-appeals/1520845.html