Medical malpractice is the failure of a doctor or other medical professional to provide the expected standard of care resulting in the injury or death of a patient. The human cost of medical errors is high.

In a major study released in 1999, the National Academy of Sciences Institute of Medicine found that up to 98,000 people are killed each year by medical errors in hospitals -- far more than those who die from car accidents, breast cancer, or AIDS. Please see Kohn, Corrigan, Donaldson, Eds., To Err is Human; Building a Safer Health System, Institute of Medicine, National Academy Press: Washington, DC, 1999 (These figures vastly underestimate the magnitude of the problem since hospital patients represent only a small percentage of the total population at risk). Yet eight times as many patients are injured by medical malpractice as ever file a claim; 16 times as many suffer injuries as receive any compensation. Please see Harvard Medical Practice Study, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, 1990.

Our attorneys have represented physicians, hospitals, nursing homes and healthcare industry members in a variety of legal matters unique to the healthcare industry including:

  • Professional Malpractice Litigation
  • Medical Records Retention and Privacy Issues
  • Nursing Home Litigation
  • Medical Staff Bylaws and Regulations
  • Professional Liability Insurance Claims
  • Agency for Health Care Administration (AHCA) Investigations and Administrative Complaints
  • Department of Health (DOH) Investigations and Administrative Complaints
  • Department of Children and Family Services (DCFS) Investigations


Jeremy K. Markman has taught law students in the area of medical malpractice and health care. Mr. Markman has been a featured speaker in educational and risk management programs for medical groups, hospitals and nursing homes. He has provided lectures and materials for educational programs regarding preparing for and preventing a legal malpractice claim, records management, family and patient issues, charting and documentation. Let his experience work for you, please contact King & Markman.

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Medical Malpractice FAQ

What is medical malpractice?

When a medical professional, such as a doctor, nurse, dentist, technician, hospital worker, hospital or other health care provider causes harm or death to a patient by failing to provide suitable care, medical malpractice or medical negligence occurs. An error in judgment is not malpractice. A medical malpractice lawyer can help determine if your health care provider did not provide acceptable care or if medical mistakes occurred. Your lawyer can also help explain the medical-legal process and help you feel at ease.

What are some examples of medical malpractice?

Examples can include failure to diagnose, misdiagnosis, prescription errors, surgical errors, birth injuries, nursing home abuse and more. Medical errors and mistakes made by hospitals, doctors and other medical professionals can result in medical malpractice, as well as sub-standard care and failure to perform a necessary function in order to prevent harm to a patient.

Is misdiagnosis considered malpractice?

Not necessarily. Medicine is not an exact science and the law does not require doctors to be right every time they make a diagnosis. However, a misdiagnosis may be malpractice if your doctor neglects to get your medical history, order the appropriate test for your illness, or recognize the symptoms of your illness. If you have not suffered any injuries as a result of the misdiagnosis and the consequent treatment, you have no basis for a medical malpractice claim.

Do unexpected or unsuccessful results mean medical malpractice occurred?

No. In general, no guarantees are made of medical results. Malpractice does not automatically occur just because a patient suffers a bad outcome. Unintended complications sometimes cause a bad outcome. Complications are not generally considered to be malpractice. In fact, most complications are contained on the consent form. Some of these include infection and bleeding.

If I signed a consent form, did I waive my right to sue for medical malpractice?

A consent form does not release a physician from liability who was negligent in performing a medical procedure. Except in extraordinary emergency situations, patients sign a general consent form for treatment upon admission to a hospital or prior to having an invasive procedure or operation, indicating that the doctor has explained the nature of the patient’s problem, the suggested treatment as well as alternative treatments, the risks involved with those treatments and that the patient has had an opportunity to ask questions before consenting to the recommended treatment. Signing a consent form does not waive a patient’s right to bring a medical malpractice claim if you can establish that your doctor deviated from the applicable standard of care in performing the procedure and you were injured as a result.

Are medical malpractice cases common?

Medical mistakes remain a national epidemic. Each year in the United States, it’s estimated nearly 98,000 people die as a result of medical malpractice. Thousands more Americans are injured as a result of medical errors annually. Despite this high incidence of medical malpractice, statistics prove most medical malpractice goes unrecognized and unreported, with only about two percent of injured patients seeking compensation through a lawsuit.

If I suspect that malpractice has occurred, what should I do?

If malpractice is suspected, do not accuse or insult the treating health care providers. As soon as possible, consult an experienced medical malpractice attorney. Tell the attorney exactly how the events unfolded; if possible, obtain your medical records so the attorney can have them reviewed by an expert. If the patient’s care is ongoing by the physician, you may want to transfer the patient to another hospital or health care provider.

What must be proved in medical malpractice cases?

Three basic elements must be proven in a medical malpractice case against a health care professional. First you must show established standards of medical practice were not followed. Next, negligence or wrongdoing that resulted in the patient’s injury or suffering must be proved. Lastly, damages caused by the medical malpractice must be shown. Lack of adequate proof of any one of the three elements will result in failure of your case.

How long will my case take?

To bring a case to conclusion, it normally takes 1 to 3 years. The time varies because of factors such as the number of parties involved, the number of depositions and investigation needed, schedules and commitments of experts, the judge and so forth. Most of the cases that we accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case’s conclusion by two to four years. Although more than 80 percent of our cases settle, we find that defendants are now more willing to take cases all the way to trial because of tort reform.

What kinds of expenses are involved?

The prosecution of a malpractice case is expensive. Medical records must be obtained, depositions must be taken and experts must be paid. The investment also includes costs for exhibits and technology to fully demonstrate the devastating injuries that are personal to each of our clients. The cost for our firm to develop a medical negligence case today often runs $50,000 to $200,000. In more complex cases, this cost may be substantially higher.

How will I pay for an attorney’s time and expenses?

Our malpractice cases are handled on a contingent fee agreement. Your executed agreement provides that we receive a percentage of the recovery made as a result of the case’s prosecution. We do not expect you to pay or defray any of the expenses of developing the case until such time as a recovery is made. At that time, those expenses will be deducted from your settlement. In the event no recovery is realized, we do not expect you to repay the out-of-pocket costs for developing the case.

What should I do if I've been injured?

If you or someone you care about has been injured, you should seek competent professional legal advice as soon as possible to see if there’s a potential claim for personal injury. There are many kinds of personal injury cases, and the cause of an injury is not always clear. At King & Markman, we have extensive experience in finding the cause of serious personal injuries. We can help you determine whether you have a valid claim and, if so, who is responsible and what compensation may be available for you.

Why is it important to seek advice promptly?

You want to make sure that all relevant evidence is preserved and not inadvertently destroyed or lost. You also need to comply with statutes of limitations and other legal requirements that may bar claims if made too late.

How do you determine if I have a valid claim?

In every case, King & Markman, evaluate the medical records and undertakes research of medical literature, consulting with experts and physicians in multiple specialties, as necessary, to determine (a) if there was negligence and (b) whether the negligence caused the injury. Because our firm has investigated and litigated cases in numerous areas, many potential claims involve issues with which we are already familiar. In some cases we may engage experts in engineering or accident reconstruction to help in determining the possible merits of a claim.

What if I am contacted by an insurance company?

If you have been injured, do not discuss your injury or the way it happened until you have consulted with one of our lawyers. Your statements might be incomplete or taken out of context and may be harmful to your claim at a later date. Do not sign any papers or agree to any settlement, as this may affect your right to pursue your claim against others who may be at fault for your injuries. Always seek competent legal advice first. At King & Markman, there is no charge for personal injury consultations.

Will there be a legal fee to evaluate my claim?

No. At King & Markman, P.A., we will meet with you to discuss your injury and your case free of charge.

How does King & Markman get paid?

In personal injury actions, King & Markman is paid no fee unless we are successful in obtaining money for your injuries. King & Markman handle personal injury claims on a contingent fee basis. This means that the legal fee is a percentage of the amount recovered, and there is no fee due unless and until money is actually collected for you.

What about expenses?

There are certain expenses, such as costs of medical records, court costs and expert witness fees, involved in bringing a personal injury claim. Once King & Markman have evaluated your claim and determined it to be well-founded, we will advance expenses associated with your case and have them reimbursed at the end of the case. You owe us nothing unless we win your case.

How much of my time will this take?

Surprisingly, your claim will not require a great deal of your time, unless it goes all the way to trial. After the initial interview, King & Markman will do most of the work for you. In the typical personal injury case, you would be required to come to the office two or three times to answer written and oral questions about what happened to you. Aside from these questions, which are a routine part of the court process, very little of your time will be required to get the case ready for trial. The final trial preparation process will, however, require more of a time commitment.

Will I have to go to court?

You will not have to go to court unless your case cannot be settled and must be tried. Because of the many factors involved, it is impossible to predict whether your particular case is one which will be settled or one which must be decided by a jury.

Will I hurt the person I'm suing by bringing a personal injury claim?

Almost all personal injury claims are defended by insurance company lawyers and paid by insurance, so the person or corporation you sue will not have to pay any money out-of-pocket. A personal injury claim is a civil case, not a criminal case, and the defendant will not go to jail because of the claim. However, one of the reasons our personal injury system exists is to make people more careful, and that can be a positive effect that your case can have on the person you are suing.

Is it ever too late to bring a claim?

It is important to consult a lawyer as soon as you are aware that you have been injured, because there are statutes of limitations which prohibit the bringing of old claims, and because it is easier to gather information about a recent injury. However, even if you were injured some time ago (and especially if the injured person is a minor or disabled from bringing an action on their own), you may still be able to bring a claim. Talk with a lawyer to get more information.

Why should I bring a personal injury claim?

If you are injured through the fault of someone else, you are entitled by law to compensation for your injuries. This compensation is available not only for expenses you have already incurred, but for losses you will suffer in the future. If you or someone in your family is severely injured, this compensation can protect against changes in family situations, so that the injured person's future is secure. Also, by bringing a claim you may be able to prevent similar injury from happening to someone else.

Do I still have a claim if my medical bills were paid by insurance?

Yes, in many cases. You may be entitled to be compensated for your medical bills regardless of whether or not they have been paid. (However, your health insurance company may claim reimbursement from you if any of your compensation represents bills that the insurer has paid. This is called "subrogation.") In addition, you may be entitled to compensation for many other aspects of your injury, such as lost earning capacity, scarring or disfigurement, future medical expenses, and pain and suffering.

What is the value of my claim?

The value of your claim depends on a wide variety of factors, such as the severity and permanency of your injury, the amount of your medical expenses, the liability of the defendant, and whether the case is to be tried or settled. It is impossible to estimate the value of a claim until the case has been fully investigated from all aspects, and sometimes its valuation may fluctuate depending on developments during the course of the litigation. You should be wary of anyone who tries to tell you the value of your claim at an early stage. After we have completed a thorough investigation of your case, we are in a position to offer you our opinion as to the value of your claim. If the insurance company offers to settle your claim, we will discuss the proposed settlement with you, and give you our advice about whether to accept the amount offered. Of course, the ultimate decision to accept an insurance company's offer of settlement or to allow a jury to determine the value of your injuries is always up to you.

If I have a claim, how long will it take?

The initial evaluation of a claim usually takes a month or so, except for medical malpractice claims, which may take three to six months. After a lawsuit is filed, the length of time depends on how crowded the court calendar is, and whether the insurance company is willing to resolve the claim before trial. Most cases take between one and three years to complete.

What geographic areas do your lawyers take cases from?

At King & Markman, we have lawyers who are admitted to all the state courts in Florida, Georgia, and New York. We also practice in the Federal Court, Middle District of Florida.