FAQs Medical Malpractice Nursing Home Injuries Attorney Port St Lucie FL

FAQs Medical Malpractice Nursing Home Injuries Attorney Port St Lucie FL

What is Florida’s Wrongful Death Act?

Florida has a law called the Wrongful Death Act that is very favorable to doctors and hospitals. If someone dies as a result of medical malpractice, the ONLY people who can bring a lawsuit are a surviving husband or wife or surviving children UNDER 25.

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How soon should I make a claim?

A potential claimant should always seek the advice of an attorney as early as possible. There could be many deadlines to meet, claims against governmental entities may require that the entity be put on notice much earlier than the statute of limitations period. A medical and legal analysis must be done prior to filing a lawsuit, so don’t wait or the lawyer might not have enough time to investigate the claim.

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How should I complain if a resident is not receiving proper care at a nursing home?

Begin by speaking with the director of nursing and the nursing home administrator. If your questions are not answered and the problems not resolved, contact the Florida Department of Children and Families Abuse Hotline and ask for an investigation, call the local ombudsman or seek legal advice.

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When should I expect that my injuries were caused by medical malpractice?

Not all medical mistakes are malpractice, but if you or a loved one has suffered an unexpected serious injury or death, you should question whether the injury or death was caused by medical negligence. You owe it to yourself and your family to know the truth and to hold the health care provider responsible for the harm he or she caused. Millions of dollars may be at stake.

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What should I do if I have been a victim of medical malpractice?

You may be experiencing pain and suffering and severe financial hardships. You should not go through this difficult time alone. You, the patient, should not be paying for your doctor’s mistakes or negligence. If you or a loved one are living with the consequences of a misdiagnosis, it is important to contact an experienced lawyer who can protect your rights and get you the compensation to which you are entitled. Contact us at 1-877-266-4298. We will review your medical records and will promptly let you know if you have a case.

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What happens in a medical negligence action?

First, the attorney must collect all of the appropriate medical records, radiographic films, and other evidence and have them reviewed by a medical expert of the same specialty as the doctor in question. If the medical expert feels that the doctor fell below the standard of care and caused injury, then the attorney prepares an affidavit for him to sign and files that along with a Notice of Intent to Initiate Litigation against the doctor and/or healthcare facility. That begins a 90-day investigation period where information is exchanged. At the conclusion of that pursuit then the complaint can be filed in court.

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What experience do Sinclair Law Offices have in the area of medical negligence lawsuits?

Attorney Charles (“Kip”) Sinclair has been representing victims of medical negligence for more than twenty-five years and has achieved settlements and verdicts for his clients of many millions of dollars. For example, he achieved a combination settlement/verdict of nearly $5 million for a woman paralyzed from a stroke. He also achieved a verdict for a man paralyzed after receiving a flu shot for more than $13 million. Mr. Sinclair is a member of the Million Dollar Advocates Forum, a select group of attorneys who have achieved verdicts or settlements in excess of $1 million.

What about the costs of pursuing litigation?

Most attorneys (including Sinclair Law Offices) will handle your case on a contingent fee arrangement. This means the lawyers will be paid a percentage of the recovery in the event of a settlement or judgment. Sinclair Law Offices will also pay all the advance costs with the understanding that they will recoup such costs only in the event of a recovery. Therefore, you will be able to secure our representation without having to pay any attorney’s fees or expenses out of one’s own pocket.

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What is medical malpractice or medical negligence?

As a general rule medical malpractice (also known as medical negligence) means that a health care provider caused injury or death to a patient by failing to act within the applicable standard of care.

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What are typical medical malpractice claims?

Lawsuits against health institutions and/or physicians for medical malpractice commonly occur under the following circumstances: – Birth injury – Surgical Negligence – Anesthesia Malpractice – Misdiagnosis – Injury from Prescription Drugs/Overdoses – Hospital Bedsores

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How common is medical malpractice?

Unfortunately, medical mistakes are commonplace in the United States. A recently published study by the Institute of Medicine reported that up to 98,000 people die each year in American hospitals due to medical mistakes. That makes medical mistakes the 8th leading cause of death in our country.

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How do I choose the proper nursing home for my loved one?

Various nursing home resources are available on the internet, and links to be found on the Sinclair Law Offices Home Page.

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What is the statute of limitations for bringing an action against a nursing home?

Any action against a nursing home for nursing home negligence must be brought within two years of the date of the negligence or injury.

Residents’ Bill of Rights

Florida Statutes give all residents of a nursing home the right to:

  1. Civil and religious liberties.
  2. Private and uncensored communication.
  3. Reasonable access to health, social and legal services.
  4. Present grievances without fear of reprisal.
  5. Be treated courteously, fairly and with the fullest measure of dignity.
  6. Privacy.
  7. Be transferred or discharged only for medical reasons.
  8. Be free from mental and physical abuse, corporal punishment, seclusion and physical and chemical restraints.
  9. Choose their own physician and be informed of their medical condition and treatment plan.
  10. Receive adequate and appropriate health care, protection and support services.

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How prevalent is nursing home abuse and neglect?

There are 17,000 nursing homes across this country. 1.5 million elderly and disabled Americans reside in nursing homes. According to a congressional report, State inspectors cited nearly 5,300 nursing homes between January 1999 to January 2001. In more than 1,600 of these homes, 1 in 10 of the nation’s nursing residences, the violations were “serious enough to cause actual harm to residents or to place the residents in immediate jeopardy of death or serious injury”

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What should I do if I suspect elder abuse?

Investigate at once. Begin collecting facts. The nursing home will not cooperate in this process. Gather all the material you can so that documents cannot be changed. Contact the abuse hotline and the ombudsman. You should also contact an attorney.

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What is the statute of limitations for nursing home abuse cases?

Two years from the date you knew or should have known about the injury.

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How can I find out if there have been any problems with a particular nursing home?

The State of Florida Agency for Health Care Administration surveys each facility and issues citations for any violations that they find. By law, all nursing homes in Florida are required to post their most recent state survey at the facility.

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What questions should I ask a facility which I am considering for a loved one?

Is there adequate staff? Is the food good? Is there an activity program for residents? Is the facility clean and free of unpleasant odors

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What is Medical Malpractice?

Medical malpractice is a doctor or other healthcare provider DOING something that a reasonable doctor or healthcare provider WOULDN’T do, causing injury; or a doctor or other healthcare provider FAILING to do something that a reasonable doctor or healthcare provider WOULD do, causing injury.

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When is failure to diagnose cancer a case?

Medical malpractice cases have two parts—negligence and causation. There has to be malpractice, and it has to cause injury. In a misdiagnosis of cancer case, there may be malpractice in missing the cancer, but the misdiagnosis must cause a difference in the survival prognosis. In other words, if the chances of survival are greater than 50 percent if the cancer was caught early, and the delay caused the chances of survival to drop below 50 percent, that would be a malpractice case. Both elements—negligence and causation—would be satisfied.

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How do I find out about my Doctor?

The Florida Board of Medicine has a website where anyone can get information about their doctor—education, hospital privileges, board certification, and any claims against him or her. There’s a link on SinclairLawOffices.com which says “Give Your Doctor a Checkup.” Click there and it’ll take you directly to the Board of Medicine.

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What is a Living Will and how do I get one?

A Living Will is a written statement detailing a person’s desires regarding their medical treatment in circumstances in which they are no longer able to express informed consent, especially an advance directive. You can download one free from this website.

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Who can sue for nursing home abuse?

For medical malpractice, the only person who can sue for the death of a loved one would be a surviving spouse or children under 25. NOT SO for nursing home abuse cases. Any family member would be able to bring a nursing home abuse case. If it involves a death, that would be the person who is or who is going to be appointed the personal representative of the estate.

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How Do I Know if I Have a Medical Malpractice Case?

The first step is to call Attorney Kip Sinclair for a free consultation. This can be by phone, in person or via Facetime. Mr. Sinclair has 30 years’ experience and often will be able to give you direction. Once he gets the medical records, he’ll consult with one of his nationally-recognized medical experts to discuss your case. He’ll let you know, and whether there’s a case or not, he’ll be able to explain to you what happened.

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Birth Injury—What Are My Options

There are several types of birth injuries that could be the result of medical malpractice. It could be a failure to diagnose and treat a problem that causes the newborn to die or to live with severe injuries—such as lack of oxygen due to fetal distress that wasn’t appropriately recognized or responded to. It could be an injury caused by the doctor or midwife, such as Erb’s palsy or shoulder dystocia, which is an injury to the nerves in the neck, causing arm paralysis. Any birth injury or death should be investigated.

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DO I HAVE A MEDICAL MALPRACTICE CASE?

Medical malpractice lawyers hire medical experts from the top teaching hospitals from around the county to review cases and often spend upwards of $75,000 to $100,000 or more in costs alone in bringing a malpractice case.  Therefore, if the injuries from alleged medical negligence are minor or not permanent and disabling, it would normally be something that the lawyer would end up spending more in costs than the client would hope to recover at the end of the day.  Therefore, any alleged medical malpractice resulting in death or serious permanent injury should be reviewed by a medical malpractice lawyer. If the malpractice results in a minor injury, it’s probably not going to be a case.

Many times the malpractice attorney can give you a preliminary opinion on whether he thinks there is a case or not, but in Florida, in order to begin a medical malpractice case, the medical records have to be reviewed by a medical expert of the same specialty as the potential defendant, and the reviewing doctor must sign an affidavit giving his opinion that there was medical malpractice which caused the injury.

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HOW DO I CHOOSE A MALPRACTICE LAWYER?

Medical malpractice is a very specialized area, and many lawyers who actually advertise for medical malpractice cases do not actually handle those cases themselves.  Try to select a lawyer who specializes in this area. A medical malpractice lawyer is the one who is experienced in this area, who knows the ins and outs of this law and who has a stable of highly qualified medical experts to assist in bringing the case.

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HOW MUCH CAN I RECOVER FOR PAIN AND SUFFERING?

The trial judge will instruct the jury that there is no exact standard for measuring these damages other than it should be fair and just in light of the evidence.  The items to be considered in evaluating the amount a case is worth include pain from the injuries, any disability or physical impairment, any disfigurement, mental anguish and the loss of the capacity to enjoy life both in the past and in the future.

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WHAT OTHER DAMAGES ARE RECOVERABLE?

In addition to pain, suffering, and disability, the reasonable expense of hospitalization and medical and nursing care and treatment in the past and in the future is also recoverable.  Additionally, any lost earnings lost time off work and lost earning capacity for the future are also elements of damages to be recovered.

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HOW LONG DOES A MALPRACTICE CASE TAKE?

From beginning to the conclusion of a malpractice case, a rough estimate would be 18 months.  Some cases are settled relatively quickly and others take much longer. Each case is different.

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WHAT IS THE DIFFERENCE BETWEEN MEDICAL MALPRACTICE AND NEGLIGENCE?

There is no difference.  The two are interchangeable.  Negligence/medical malpractice is defined as the failure to use reasonable care.  Reasonable care on the part of a doctor, hospital or healthcare provider is that level of care, skill, and treatment, which, in light of all circumstances, is acceptable and appropriate by similar and reasonably careful physicians, hospitals or healthcare providers.  The law defines medical negligence as doing something that a reasonably careful physician, hospital or healthcare provider would not do under similar circumstances, or failing to do something that a reasonably careful doctor, hospital or healthcare provider would do under similar circumstances.

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HOW MUCH DOES IT COST TO HIRE A MEDICAL MALPRACTICE ATTORNEY?

Nothing.  The initial consultation either by phone or in person is always free.  If you have a case, you do not have to pay anything until the case is successfully concluded.  If you win, attorney’s fees and costs are paid out of the settlement. If you do not win, or if it is determined that you do not have a case, you do not owe the malpractice attorney anything.  Any costs advanced by the attorney are paid by the attorney and if you do not have a case, or if your case isn’t successful, you would not be responsible for anything.

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HOW LONG DO I HAVE TO FILE A MEDICAL MALPRACTICE LAWSUIT?

The Florida Statute of Limitations for medical malpractice cases is 2 years from the date you knew or should have known that there was something wrong.  Any action must be brought on or before that time. It is important to note that you do not have to know exactly what the malpractice was, only that there was something wrong that alerted you to a problem.  That’s when the statute of limitations starts running.

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HOW MUCH DOES A LAWYER GET OUT OF SETTLEMENT?

If the case is settled before suit is filed, the attorney gets 1/3 of the settlement as his fees, plus any costs he has expanded.  Once the lawsuit is filed in court, the attorney’s fees go to 40% of the recovery and it stays at that level through trial.

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HOW DO I GET TO TALK TO A MEDICAL MALPRACTICE ATTORNEY ABOUT MY POSSIBLE CASE?

Simple.  Call the office.  You want to be able to talk directly to the malpractice attorney himself or herself and not to a nurse or paralegal about your case.  The attorney is the one who has the best information to advise you as to whether there is a case or not.

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DO I HAVE TO PROVE MY MEDICAL MALPRACTICE CASE BEYOND AND TO THE EXCLUSION TO EVERY REASONABLE DOUBT?

No.  That’s the standard for criminal cases, not for medical malpractice cases.  In a medical malpractice case, you must only prove your case to a jury by a greater and more convincing weight of the evidence.

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WHAT ARE MY CHANCES IN A MEDICAL MALPRACTICE TRIAL?

Juries like doctors and hospitals.  That being said, most malpractice cases settle prior to trial.  Once a malpractice case gets to trial in front of a jury, the statistics show that the chances of winning are only 20%.  However, every case is different and every jury is different, so the statistics don’t always mean much.

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I HAD A DOCTOR/HOSPITAL ALMOST KILL ME BY DOING SOMETHING WRONG. FORTUNATELY I AM FINE NOW, BUT DO I HAVE A CASE?

No.  There won’t be a case unless they cause permanent, disabling injuries to you as a result of their negligence.  It’s like a truck running a stop sign in front of you but not hitting you. They were negligent, but you can’t sue them because they didn’t hit you.

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WHAT IS THE WRONGFUL DEATH ACT?

Florida has a law called the Wrongful Death Act which greatly restricts who can sue for the death of a loved one due to medical or hospital negligence.  If a loved one dies as a result of medical negligence, the only persons who are able to bring a lawsuit would be the surviving husband or wife or surviving children under the age of 25.  They are known as survivors under the Wrongful Death Act. Anyone else would not qualify as a survivor under the Wrongful Death Act and would not be able to bring a lawsuit.

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HOW LONG DOES A NURSING HOME LAWSUIT TAKE?

It varies.  In Florida, due to laws which do not require nursing home operators to carry very much insurance, many times these cases can be resolved prior to filing suit, which would be only a matter of months.  Sometimes, families are asked to sign Arbitration Agreements which take away their rights to a trial. Arbitration can still take up to 2 years, and as can a case that is filed in court.

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SHOULD WE SIGN A NURSING HOME ARBITRATION AGREEMENT ON ADMISSION?

No.  You will likely be told this will simplify any claims against the facility, but in effect, it protects the facility from having a jury render a verdict.  It doesn’t save time, it doesn’t save money and it makes things more difficult for a full recovery. You do not have to sign an arbitration agreement for your loved one to be admitted to a nursing home.

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WHAT RIGHTS DO NURSING HOME RESIDENTS HAVE?

Florida law provides nursing home residents with rights which must be protected by the nursing home facility.  Among those, the right to receive adequate and appropriate health care and protection and support services, including social services, mental health services, recreational activities, and rehabilitation.  Another important nursing home resident right is the right to be treated courteously, fairly and with the fullest measure of dignity and to be free from mental and physical abuse and physical and chemical restraints, except those restraints authorized in writing by a doctor for a limited period of time.  Resident’s rights as outlined by Florida statute are required to be posted in every nursing home.

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WHAT IF THESE RIGHTS ARE VIOLATED BY THE NURSING HOME STAFF?

Any violation of these rights which cause harm to the resident can expose the nursing home to a lawsuit for injuries and damages.

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MY LOVED ONE IS IN A NURSING HOME. WHAT DO I LOOK FOR TO MAKE SURE THEY ARE BEING CARED FOR ADEQUATELY?

First, make sure the nursing home staff is responsive to your requests and needs.  Look out for warning signs of abuse, which could be bruising, broken bones, severe weight loss, pressure sores or sudden unexplained changes in condition.

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WHAT CAN I DO IF I FEEL MY LOVED ONE IS BEING NEGLECTED OR ABUSED IN A NURSING HOME?

You can call a nursing home attorney who can get their records and investigate the case, bringing a lawsuit if appropriate.  You can also contact the Florida Department of Children and Families Adult Abuse Hotline at 1-800-962-2873 and report the situation.  They will investigate it on your behalf.

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IS A NURSING HOME NEGLIGENCE CASE DIFFERENT FROM A MEDICAL MALPRACTICE CASE?

Yes.  A different Florida law applies to each.  For example, the Florida Wrongful Death Act strictly limits who can file a lawsuit for medical malpractice in the event of the death of a patient.  In a nursing home lawsuit, no such restrictions apply, and any family member who becomes the personal representative of the decedent’s estate has the authority to file a lawsuit against the nursing home.  

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MY LOVED ONE’S NURSING HOME TELLS ME THEY ARE NOT ALLOWED TO USE BEDRAILS OR OTHER TYPES OF RESTRAINTS ON MY LOVED ONE. HOW ELSE CAN A NURSING HOME PREVENT FALLS AND INJURIES?

Under some special circumstances, the resident’s doctor can prescribe bedrails.  Other methods which a nursing home can and should use to prevent falls are a bed and chair alarm, a bed which is low to the ground, mattresses or pads on the floor next to the bed, a low wheelchair and timely response by the staff to the resident’s call light.

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