What is medical malpractice?

In general, it is the failure of the doctor, hospital or other healthcare 
professional to meet the level of care, skill and treatment, whichis 
recognized as acceptable and appropriate by reasonable prudent healthcare 
providers giving care under similar circumstances. Simply put, it is 
negligence by the health care provider causing injury to the patient. 

How does one prove medical malpractice?

Typically, medical malpractice is established by the testimony of anexpert 
witness, who practices in and/or is well familiar with the field ofmedicine 
of the doctor or other health care provider you believe harmed youor your 
loved one. This evidence is called the "standard of care." Becausemedical 
knowledge is so specialized, the best experts are those whose dailypractice 
involves the same questions of diagnosis and care as your doctor facedwhen 
he or she treated you for your medical complaints. Through the useof a 
qualified expert witness -- and different states have different ruleson 
qualifying an expert medical witness -- you show that your health care 
provider did not meet minimum professional standards in her care ofyou or 
your loved one. 

An example: suppose your doctor sends you to a radiologist for a mammogram. 
Your radiologist reports back to your doctor that she sees suspicious 
microcalcifications and suggests a biopsy. Your doctor does not immediately 
tell you of this potentially life threatening development. You go onto 
develop a cancer not only in your breast, but also in your lymphaticsystem, 
threatening to further spread into other parts of your body.

If my doctor was negligent, does that meanI win?

Not necessarily. Sometimes, the negligence of the doctor will not causeyou 
any increased harm or damages. You have to establish not only thatthe 
doctor, through negligence, violated the standard of care, but alsothat your 
doctor's negligence played a substantial role in causing you harm. 
 

What is the statute of limitations for suingmy doctor or health care 
provider?

The statute of limitations is a time limit set by law, which createsa 
deadline for filing a lawsuit. Each state has its own statute of limitations. 
Each particular statute of limitations has its own intricacy. In somestates, 
the statute of limitations will not begin to run so long as the doctoris 
continuing to treat the patient. In other states, the statute of limitations 
will expire even if the plaintiff is unaware that her doctor has injuredher. 
In other states, the statute can be of one duration if you are stillalive, 
but of a shorter duration for your heirs if the health care provider's 
negligence proved fatal. As you might imagine, there are variationswithin 
each of these settings, and there are variations that depend upon whether 
your health care provider was in private practice, state or local clinical 
practice, or federal government service. The best rule is for you,the victim 
of medical negligence, to immediately discuss with an attorney of yourchoice 
your specific factual circumstance and to be guided by your attorney's 
determination of the statute of limitations. In following this rule,be very 
clear that defense lawyers will always research the facts and the lawto 
develop an argument that your claim is time barred because of the passageof 
the statute of limitations. Time is always of the essence in seekingout your 
attorney.

What should I bring to my first meeting withmy attorney?

Each attorney will guide you specifically. In general, you should gothrough 
your notes and documents so that you will have a good ability to showand 
tell your attorney your information on the following topics: (1) whowere the 
doctors, nurses and hospitals involved in providing health care toyou (2) 
what problems or issues did you come to your doctors with for help;(3) how 
do you think your health care providers let you down; (4) what madeyou first 
think, and when did you first think, that your health care providerslet you 
down; (5) what evidence is there that your health care provider's actions 
were improper: For examples: did a nurse suggest to you that you shouldtalk 
with a lawyer, or, were you told that quality assurance would lookinto this 
matter, and; (6) how do you believe your health and well being havebeen 
impaired and compromised as a result of the medical care you believewas 
inadequate. If you have your medical and billing records in hand, itis 
always good to bring them to the first meeting. 

What types of medical negligence claims haveyou recently handled?

In the past several years, cases I have handled for victims of medical 
malpractice include the following factual circumstances, presentedhere in 
very boiled down form:

a. Claims against a radiologist and gynecologist for failure to diagnose 
breast cancer.

b. Wrongful Death claim against a hospital and anesthesiologist forfailure 
to properly monitor the patient.

c. Claims against a Home Health Care, Hospital and orthopedic surgeonfor 
failure to diagnose and treat an infection causing a below the knee 
amputation. 

d. Claims against hospital and surgeons for delayed diagnosis and surgery 
causing anoxic brain injury. 

e. Claim against an urologist for failure to diagnose prostate cancer.

f. Claims against a hospital, emergency room physician, admitting physician 
and cardiologist for failure to timely diagnose and treat an acuteMyocardial 
Infarction (heart attack).

g. Claims against gynecologist for failure to obtain medical clearanceprior 
to removing patient's medications causing a stroke, brain injury and 
paralysis. 

What is Personal Injury?

Personal injury is a broad area of law that encompasses injuries anddeaths 
from a variety of different types of negligence. These include butare not 
limited to the following:

a. Automobile accidents;
b. Slip and falls;
c. Motorcycle accidents;
d. Pedestrian accidents;
e. Boating accidents;
f. Airplane accidents; and
g. Train accidents.

Negligence alone is not sufficient to present a Personal Injury Casein 
Florida. An attorney must prove three elements: 
1) Defendant's duty to protect others, including the plaintiff;
2) Failure on the part of the defendant to perform that duty; and
3) Injury or damage to the plaintiff proximately caused by that failure.

When all these factors are brought together, they constitute actionable 
negligence. For example: A driver of a car has a responsibility touse due 
care in operating his vehicle. If that driver is negligent in failingto keep 
his car under control and hits another vehicle, he would be negligent. 
However, that negligence must also cause a permanent injury under Floridalaw 
in order to recover for pain and suffering. 

With a slip and fall case, one must only prove that the negligence causedthe 
injury. There is no requirement of a permanent injury.

All areas of Personal Injury Law have hundreds of different little nuances. 
Because of this, it is important to contact an attorney who will makesure 
your case is handled properly and your rights are protected. 
 

Phillips P. O'Shaughnessy Esq. is "Of Counsel" to the law Firm ofJones and 
Wolfe P.A. and primarily handles Legal Malpractice Cases. He hasbeen 
gracious enough to provide some insightful information regardingthat area of 
law. 

Legal Malpractice:

What is legal malpractice?

In general, it is the failure of the attorney to meet reasonable professional 
standards in his/her representation of the client.

How does one prove legal malpractice?

Typically, legal malpractice is established by the testimony of an expert 
witness, an attorney with familiarity with the same type of transactionsand 
claims as your attorney handled on your behalf. The expert witness 
establishes the "standard of care" of an attorney in handling thistype of 
matter and provides expert analysis on the ways in which your attorneyfailed 
to meet those standards. A good way to think about the "standard ofcare" is 
the rules of the road for professionals in the field. Just as we expect
licensed automobile drivers to recognize and obey Yield and Stop signs, 
practitioners in a given field of law should be held to know and obeyYield 
and Stop signs in their professional work.

There are some violations of the standard of care that many courts consider 
so plain as to not require the injured person to put on expert testimonythat 
the attorney violated the standard of care. Not all courts agree onwhich 
conduct is so far from accepted standards as to represent obvious negligence. 
But, certain types of conduct by attorneys have been routinely scrutinizedas 
evidencing obvious negligence. Examples include the failure of an attorneyto 
file an injured person's case before the statute of limitations ---a 
legislatively set time period requiring that claims be filed withinsome many 
years of the occurrence of the harm --- has run and terminated theability of 
the injured person to present her case in court. Another example isan 
attorney who fails to obey court orders and rules of procedure directly 
causing the client's case to be diminished and/or dismissed from court.

If I prove my attorney's negligence, does thatmean I win?

Not necessarily. You must also establish that the attorney's negligence 
actually caused you harm. Sometimes, an attorney can be very negligent,such 
as in failing to file a medical negligence claim against a doctor whoinjured 
you, before the statute of limitations came and extinguished your rightto 
sue the doctor. But, if you sue your attorney, you can expect thatshe will 
claim that even if she had timely filed your case, it was not a casethat you 
would probably have won. Because you would have lost your medical negligence 
claim anyway, your former attorney will argue, her failure to fileit in 
court on time did not harm you at all.

What is meant by the "case within a case"?

The "case within a case" is the case in which your attorney committed 
negligence. For example, the medical negligence case against a doctorfor the 
failure to diagnose your breast cancer, which the court dismissed,for 
example, because your lawyer failed to name expert witnesses on yourbehalf 
in the time period set by the Court's scheduling order. This case --the case 
your attorney should have properly handled for you -- is within thelegal 
negligence case, that is your claim that the attorney committed negligence. 
In this "case within a case" analysis, the Court will require the person 
injured by the lawyer's malpractice to also show that if the lawyerhad done 
her job professionally you would likely have won your case againstyour 
doctor for medical negligence.

What is meant by the "collectibility" defense?

The lawyer defending himself against a claim for legal negligence willargue 
that he is only financially responsible to you for losing the caseyou had 
entrusted to him to the extent that you would have been able to collectmoney 
from the person he should have successfully sued on your behalf. Forexample, 
if your lawyer did not file your case in time to beat the running ofthe 
statute of limitations against a driver who ran into your vehicle and 
permanently injured you, your lawyer will argue that if he had donehis job 
and won a judgment in court against the driver he still would not oweyou any 
money for his negligence if the driver was a man without any assetsor 
insurance. In other words, this is the extreme end point of the "casewithin 
a case" analysis. If the lawyer you are suing would have been unable,despite 
prodigious efforts, to collect a dime on your behalf from the defendantyou 
sued, then the lawyer will argue that his negligence did not depriveyou of 
any money. Many courts today accept this analysis, even if the lawyerhimself 
has tremendous assets and malpractice insurance.

What is the statute of limitations for suingmy attorney?

Each state has its own statute of limitations. Because the types ofclaims 
that can be brought against an attorney can fall into several different 
types, no overall answer can be provided to this question. Claims canbe for 
negligence, for breach of contract, for breach of a fiduciary duty-- such as 
maintaining your funds in an escrow or trust account, for civil theftunder 
specific state laws, and, as another example, for fraud and negligent 
misrepresentation. Oftentimes, especially in transactions crossingstate 
lines, the law of one state will provide a different period of limitations 
then another. This leads to a type of analysis called "choice of law."It is 
kindred to counting angels on pin heads and provokes much learned discussion, 
but sometimes leads to a pointed outcome. If the wrong state law applies, 
your case will be thrown out of Court even though it was timely broughtunder 
the law of a different state. The best rule is for you, the victimof legal 
negligence, to immediately discuss with an attorney of your choiceyour 
specific factual circumstance and to be guided by your attorney's 
determination of the statute of limitations. In following this rule,be very 
clear that defense lawyers will always research the facts and the lawto 
develop an argument that your claim is time barred because of the passageof 
the statute of limitations. Time is always of the essence in seekingout your 
attorney.

What should I bring to my first meeting withmy attorney?

Each attorney will guide you specifically. In general, you should gothrough 
your notes and documents so that you will have a good ability to showand 
tell your attorney your information on the following topics: (1) wasthere a 
written engagement letter setting forth your attorneys duties to you;(2) 
what did you ask your attorney to help you achieve; (3) how do youthink your 
attorney let you down; (4) what made you first think, and when didyou first 
think, that your attorney let you down; (5) what evidence is therethat your 
attorney's actions were improper: For example, is there an opinionfrom the 
trial judge or from the appellate court that is critical of your attorney's 
conduct, and; (6) how has your attorney's actions harmed you and howdo you 
calculate your losses.

What types of legal negligence claims haveyou recently handled?

In the past several years, cases I have handled for victims of legal 
malpractice include the following factual circumstances, presentedhere in 
very boiled down form:

a. Claim against a law firm for betraying its clients and sabotagingtheir 
effort to bring their technology company public.

b. Claim against a law firm for negligently prosecuting a US patent 
application for a valuable technology and for negligently failing toamend 
and correct the patent in time for the rights granted by the patentto be 
sold to a large pharmaceutical company.

c. Claims against an attorney for failure to file a negligent maintenance 
of premises case against a hotel before the expiration of the statuteof 
limitations.

d. Claims against an attorney for failure to answer a court pleadingon 
time so that all defenses of an honest businessman were struck andhe became 
exposed to a significant claim for financial damages and business losses.