As Palm Beach medical malpractice lawyers, we know that some of the most common claims stem from diagnostic errors. These include situations like failure to identify a serious disease or diagnosing you with one condition when really you have something else. In these situations, a doctor’s deviation from the standard of care can cause a patient to lose critical time in treating the actual condition. Sometimes, these mistakes cost patients their lives.
But what if you’re diagnosed with something you never actually had? On one hand, you might be relieved to find out you’re disease-free. But on the other hand, you may have undergone numerous painful treatments – not to mention the emotional and mental anguish of such a diagnosis – only to find out it was all wholly unnecessary.
The trauma in that situation is valid. However, it might not be legally actionable. That’s because of the lack of permanent harm.
The reality is that medical malpractice lawsuits are very expensive. They require expensive expert witnesses, a lot of attorney time and energy, etc. And attorneys accept these cases on a contingency basis, meaning they aren’t paid unless and until the plaintiff wins. Even then, most are accepting a percentage of the overall damage award. If there’s no permanent harm suffered, that means the potential damage award dwindles substantially – and fewer attorneys are going to be willing to take the risk.
But we do recognize this is incredibly frustrating for patients who have had to endure these ordeals. The Tampa Bay Times recently delved into this issue, highlighting several cases of diagnostic errors that that led to patients believing they had a serious illness when they actually didn’t.
In one case, a woman was told two days before Christmas that laboratory tests confirmed a type of cancer in her lymphatic system that usually spreads fast to other organs. Her husband was devastated. They canceled holiday celebrations. They cried together a lot. They talked about the wife’s final wishes, and how the husband would manage – financially and otherwise – without her. They canceled an expensive, non-refundable, two-month vacation they had planned so they could focus on her treatment. She upgraded her medical insurance policy to one that was double what she’d previously had. She paid more than $4,000 in tests and consultations. Out of pocket, the couple estimates they were out about $20,000.
But then two months later, a new test result shocked them both: She was completely cancer-free. She’d been misdiagnosed, and as it turned out, she didn’t need any treatment at all.
When she contacted several injury lawyers to see about filing a medical malpractice claim, each turned her down. All cited the fact that she’s currently healthy and whatever damages she did collect probably wouldn’t cover the amount it would take to bring the case to court.
As medical malpractice attorneys, we do understand the deep anger and frustration and desire to hold medical providers accountable when they make major errors. But the reality of such a low damage award means the statutorily-required expert witness would get paid, the lawyer would get paid, but the client probably wouldn’t. Most medical malpractice lawyers would find taking such a case to be unethical. But neither can we agree to take less than our regular fee for our work – or ask the expert witness to do so.
In another case, a patient who was given two different types of painkillers that are contraindicated says he suffered three days of acute hallucinations as a result. The hospital sent him a bill for several hundred dollars, which he has refused to pay. As a matter of principle, he said, he shouldn’t have to pay for their negligence. And he’s right. But so are the attorneys who won’t take the case. Proving medical negligence is an arduous, highly-technical, and time-consuming process. It would not be worth it to do so to recover on a $900 bill that wouldn’t even begin to cover the cost of what it would take to successfully pursue such a case.
Again, we know it’s incredibly frustrating. It’s also an opportunity to consider that when insurers are raving about how the premiums they charge have to be astronomically high to account for all the “frivolous” claims, (which is not a problem in actuality), the truth of the matter is there are a host of smaller-level claims like these that never even make it passed the front steps of the courthouse.
Small claims court – which is available for almost any other civil wrong with damages of up to $8,000 – is not an option in Florida medical malpractice claims. And the rigorous system set up to filter out frivolous medical claims must be applied to all cases, even if the damage award is relatively small.
Florida statutes require medical expert witnesses – with similar educational and experiential background as the defendant – to sign an affidavit attesting to grounds for medical malpractice. That might seem simple, but this one step usually involves many hours of attorney time, gathering treatment records, reviewing case files, locating an expert who is qualified to testify under the Daubert standard, and then obtaining that expert’s findings. Just this initial process alone can cost upwards of $100,000. If the patient hasn’t suffered long-term damage, jurors are unlikely to award high damages.
One option you might consider is filing a complaint with the Florida Medical Board or the Florida Agency for Health Care Administration. You’re unlikely to be awarded any money, but an investigation could result in some measure of professional accountability for the wrongdoing.
It is possible to enter into a pre-suit mediation with the health care provider, but that will likely mean forfeiting your right to sue and/or waiving your right to talk publicly about the case. That may seem incredibly unfair, but if it’s an option on the table, it’s one that may be worth considering if you aren’t likely to win a larger payout.
Our dedicated medical malpractice lawyers in Palm Beach County can help you explore your legal options.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Daubert-Proofing Your Expert, Dec. 29, 2021, American Bar Association
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What is the Florida Medical Malpractice Statute of Limitations? April 30, 2023, Palm Beach Medical Malpractice Lawyer Blog