Weinstein Legal personal injury law firm Fort Lauderdale

Medical Malpractice FAQ

Answers on Medical Malpractice

attorney reviewing questions about a medical malpractice case near a gavel and stethoscope

When you place your trust in the hands of a medical professional, it can be devastating to learn that something has gone wrong. A mistake on the behalf of a negligent medical professional can lead to life-long injury, which is just one of the many reasons why victims of medical malpractice deserve justice.

While the successful outcome of a medical malpractice lawsuit cannot undo the damage that was done, nor can it reverse the pain and suffering caused, pursuing justice can help ease the financial burden that has been placed on your family. At Weinstein Legal, our respected personal injury lawyers work closely with many prestigious medical malpractice firms in South Florida. Here are some of the most frequently asked questions we’re faced with when working with medical malpractice clients.

Q: What is medical malpractice?

A: Medical malpractice is defined as negligent treatment by a medical provider, including doctors, hospitals, nurses, chiropractors, therapists, or other medical practitioners. A medical provider that does not act in a manner that is considered the accepted standard of care in the diagnosis or treatment of a condition can be held responsible for all damages that result, including pain and suffering, medical bills, loss of wages, or wrongful death.

Q: Who can be liable for medical malpractice?

A: A common misconception about medical negligence is that the responsibility falls solely on doctors. Conversely, any licensed medical practitioner can be found guilty of medical malpractice, including:

  • Doctors
  • Surgeons
  • Nurses
  • Assistants
  • Hospitals
  • Hospital Staff
  • Dentists
  • Anesthesiologists

Q: What are examples of medical malpractice?

A: Medical malpractice can occur in a variety of scenarios in which a medical professional makes a mistake or uses improper judgement. Common examples of medical malpractice cases include:

  • Birth injuries
  • Gynecological and obstetrical malpractice
  • Surgical errors
  • Emergency Room negligence
  • Anesthesia errors
  • Misdiagnosis or delayed diagnosis
  • Failure to diagnose cancer
  • Medication errors
  • Brain injuries
  • Patient neglect
  • Failure to obtain necessary patient information

Q: Are nursing home injury or abuse cases considered medical malpractice?

A: No, unless the resident in question was receiving medical treatment at the time. Harm resulting from injury or abuse while residing in a nursing home or long-term care setting can undoubtedly form the basis of a lawsuit in its own right. However, medical malpractice claims typically require the existence of a doctor-patient relationship, not just residence-based care.


A: The first thing to note is that an adverse medical outcome does not immediately translate to medical malpractice. Even when a medical professional acts with the highest level of knowledge and care, things that are out of their control can go wrong. To demonstrate that you have a valid claim, the following elements are required:

  1. A Doctor-Patient relationship was established, either by agreement or by treatment received.
  2. A Duty or Standard of Care was established, stating the legal obligation of the medical professional to provide care that meets the accepted standard in the medical community.
  3. A Breach of the Duty of Care occurred, meaning the professional did not uphold his obligation.
  4. The Breach of Care was the primary cause of injury, proven by medical records and expert testimony.
  5. The injury caused damages, whether it be medical expenses, pain and suffering, lost wages, or other effects.

Q: Can I sue for what might have happened during a medical procedure?

A: No. Medical malpractice solely constitutes damages, such as injury, pain and suffering, or the need for further treatment. While it’s not comforting to learn that something could have gone wrong during a medical procedure, if the mistake was caught and corrected right away without harm, you do not have a valid medical malpractice case.

Q: If I signed a consent form prior to the incident, can I recover any damages in a claim against my doctor?

A: Yes, it is still possible to recover damages. A consent form does not allow a medical practitioner to act negligently. If you can establish that your doctor deviated from the applicable standard of care and that you were injured as a result, you may still receive compensation for your damages.

Q: Does someone who is not satisfied with the results of his or her surgery have a viable medical malpractice claim?

A: Not necessarily. Medical results cannot be guaranteed, and unexpected or unsuccessful results do not necessarily mean your medical provider was negligent. For a successful medical malpractice case, injury or damages had to result from the doctor’s deviation from the standard of care applicable to the procedure.

Q: Do most medical malpractice cases go to trial?

A: While medical malpractice cases do tend to go to trial more often than personal injury cases, a majority of medical malpractice cases settle before going to trial. According to the U.S. Bureau of Justice Statistics, around 93% of medical malpractice cases reach settlements before a verdict is reached at trial.

Q: What does “preponderance of the evidence” mean?

A: Preponderance of the evidence is the burden of proof required to win a medical malpractice lawsuit. Literally defined, preponderance is the quality of being greater in quality or importance. In medical malpractice cases, preponderance is based on the more convincing evidence and its probable truth or accuracy, as opposed to the amount of evidence.

Q: What is “pure comparative fault”?

A: Florida operates under a “pure comparative fault” system, in which a victim’s level of negligence is not a bar to recover for their injuries. In medical malpractice cases, this can apply when the victim’s own failure to exercise reasonable care actually played a role in causing or contributing to their injuries, or the extent of those injuries.

The defendant can argue that the victim’s own actions were a factor in the worsening of his or her health condition. For example, if the plaintiff missed a series of doctor’s appointments or failed to consult with a specialist after being instructed to do so, this could be ruled as contributory fault. However, Florida law states that while this can reduce the damages recovered, it will not eliminate it. For instance, if a jury found that the defendant was 20% at-fault for their injuries, they would still be able to recover 80% of their damages from the other party.

Q: What is “informed consent?”

A: Before a doctor performs a medical procedure or treatment, he or she is required to advise the patient of the potential outcomes. This includes reasonably apparent negative consequences, such as side effects and complications. The communication of this information is known as “informed consent.”

If a doctor fails to communicate these outcomes, it could amount to medical malpractice if the patient suffers damages as a result of treatment that he or she wouldn’t have agreed to initially if the patient had been aware of all facts. Bear in mind that informed consent is not required in all treatment scenarios, such as when an unconscious patient is receiving emergency services.

Q: What damages can I recover in a medical malpractice case?

A: There are two main types of damages victims of medical malpractice may be entitled to: compensatory and punitive. Compensatory damages, also known as monetary damages, are the most common form of damages in a personal injury claim.

Compensatory damages can include:

  • Past, current, and future medical bills
  • Costs of medical equipment
  • Home healthcare expenses
  • Lost wages
  • Emotional duress
  • Loss of future earnings potential
  • Loss of enjoyment of life (Loss of Consortium)

Punitive damages are rare in medical malpractice cases but may be available if the medical professional in question acted intentionally or with particularly reckless behavior. These types of damages are awarded to punish the professional for gross negligence, or when the court feels as though they would be getting off lightly by only having to compensate the patient for the resulting injuries.

Q: Is there a minimum or maximum amount that can be recovered in a medical malpractice lawsuit?

A: There is no minimum amount that a victim must be awarded in a medical malpractice case. However, a number of states have placed “caps” on the maximum amount of compensation a victim can be granted when it comes to non-economic damages, such as pain and suffering. Bear in mind these caps don’t typically apply to economic damages, such as lost wages, inability to return to work, or past and future medical care.

Q: What is the statute of limitations for a medical malpractice lawsuit?

A: To file a claim under Florida law, victims of medical malpractice have two years from the date of the incident giving rise to the claim, or two years from the time the incident is or should have been discovered with the exercise of due diligence. If you believe you may be entitled to file a claim for medical negligence, time is of the essence.

Q: Can a medical malpractice case be reopened after it has settled?

A: No. A medical malpractice case is considered a civil suit. With all civil cases, the plaintiff is required to sign a release in which they agree to forgo any future legal action whatsoever once the case has been closed. This is the case for medical malpractice lawsuits.

For this reason, victims of medical negligence are urged to fully understand the extent of their losses prior to agreeing to a malpractice settlement. Once a release has been signed, there’s no going back and asking for more compensation.

If you’re a victim of medical malpractice, consult with Weinstein Legal. Working with some of the most prestigious medical malpractice firms in South Florida, Weinstein Legal can help provide the guidance you need.