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Surgical Error vs. Medical Malpractice: Understanding the Difference


It may be difficult for those who are the victim of surgical error to understand, but not all surgical errors rise to the level of medical malpractice. For patients that sustained an injury during surgery, this means that they won’t always be able to collect damages. Medical errors happen from time to time because surgery is complicated and each surgery carries with it inherent risks, no matter how straight forward the surgery may seem. The question for patients is: when does a medical error rise to the level of medical malpractice?

The Key to Malpractice is Negligence

The key to understanding what constitutes medical malpractice versus what constitutes mere surgical error is the role that negligence plays. Negligence is a legal term that underlies almost all personal injury and liability claims. This is as true in Florida as it is elsewhere.

Negligence is understood to be one of two situations. It is an act that a reasonable person should do or not do in a given situation. When this act or failure to act results in physical harm to another person or their property, the negligent individual is liable under the law for the damages caused to another person.

In terms of medical malpractice, the burden of proof is on the plaintiff to establish that the attending doctor, nurses, or hospital failed a certain standard of care. More specifically:

  1. Florida law recognizes that the medical profession abides by a certain standard of care. A patient has a right to expect that standard of care when being treated. In the event that it is determined that the doctors, nurses, hospital or any of its staff failed that standard of care, they could be guilty of medical negligence.
  2. However, medical negligence alone is not enough to bring a lawsuit against a doctor or hospital. It must be shown that the medical negligence did indeed result in an injury to the patient. Otherwise, the patient has no case against the doctor or the hospital. It must further be proven that the injury would not have been sustained had it not been for the medical negligence.

Examples of Medical Malpractice in Florida 

While the law does not limit the types of situations that may give rise to a malpractice suit, the type of negligent act, or breach of the standard of care, will determine of a viable case exists.

Examples of potential medical negligence include:

  • A surgery that is performed on the wrong site
  • A failure to diagnose an ailment or a missed diagnosis
  • A surgery that proves to be unnecessary
  • A failure to consider a patient’s history that results in foreseeable harm to the patient
  • Discharging a patient prematurely
  • Improperly read or misinterpreted lab results
  • Poor follow-up that results in preventable injury

Have You Been the Victim of Medical Malpractice? 

If so, Palmer | Lopez in Tampa, Florida can take your case to trial if necessary to ensure the recovery you deserve. Give us a call at 813-506-5651, and we’ll start discussing your case right away.

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