medical malpractice attorneys

“Can I Sue If Florida Doctors Misdiagnose Me With Cancer?”

June 30, 2023 | by David J. Halberg, Esq.

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. medical malpractice diagnosis error

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. Continue reading

Explaining Florida’s Three Strikes Rule for Medical Malpractice

February 10, 2022 | by David J. Halberg, Esq.

As experienced Palm Beach medical malpractice lawyers, we’re closely familiar with the 2004 Florida law passed overwhelmingly by voters with the intention of preventing dangerous doctors from practicing medicine. It’s a “three strikes” rule for medical malpractice that seems fairly straightforward: A doctor with three “strikes” of medical malpractice will lose their license to practice. Unfortunately, we know all-too-well how ineffective it is, thanks to follow-up efforts by the state legislature, which made it nearly impossible for the state board to actually levy a strike. Palm Beach medical malpractice lawyer

The “Three Strikes Rule” was passed as an amendment to Chapters 458 and 459 of Florida Statutes. The law holds that if a physician has three or more incidents of medical malpractice (as established by a standard of clear and convincing evidence), they will be forbidden from the continued practice of medicine in Florida. A “strike” can be derived from a finding of medical malpractice by one of the following:

A final order by an administrative agency following a hearing.
A final order by a judge/jury in a civil case.
A binding arbitration decision.

It should be noted that medical malpractice isn’t as easy to prove as the typical negligence case. It’s not enough to show the absence of ordinary care. Rather, one must prove – via expert witness testimony from a similarly-situated professional – that the physician failed to abide the applicable standard of care, which depends on that doctor’s education, skill, specialty, and resources. But even with this higher standard and even with the three strikes law, doctors with checkered professional histories continue to practice.

Numerous journalistic deep-dives and scholarly studies in recent years – from NBC-5 in West Palm Beach to The Palm Beach Post – have highlighted this legal loophole. Yet as our medical malpractice lawyers can attest, the problem persists, with Florida doctors who’ve paid out 3+ medical malpractice claims continuing to practice, often with patients none-the-wiser. News outlets have reported there are hundreds of still-practicing doctors who have collectively paid out hundreds of millions of dollars in Florida medical malpractice lawsuits stemming from the deaths of more than 1,000 patients over 10 years. Continue reading

$10M Medical Malpractice Award Reversed, New Trial Ordered

June 29, 2018 | by David J. Halberg, Esq.

A hospital system in Alabama was granted a new trial following a jury verdict for $10 million in favor of a man who sued for medical malpractice over his infant son’s treatment. The primary cause for reversal, the Alabama Supreme Court ruled, was the trial court’s decision to allow prior acts and omissions by the hospital system defendant. These facts were not relevant to the case at hand, justices ruled, and were ultimately highly prejudicial to the defense. medical malpractice attorney

Although this is surely not the news plaintiff wanted to hear, it does not mean the case is lost. It means medical malpractice attorneys will need to be fully prepared to thoroughly establish a failure to meet the applicable standard of medical care this scenario necessitated.

According to court records, the child ultimately suffered from seizure disorder, blindness and deafness as a result of misdiagnosed bacterial meningitis. Research published by the Mayo Clinic in Minnesota revealed approximately 20 percent of patients who sought a second opinion at one of the country’s top medical providers learned they had been initially misdiagnosed by their primary care provider. Study authors noted that correct diagnosis can be difficult because there are some 10,000 diseases and only about 300 symptoms. Our medical malpractice attorneys in West Palm Beach recognize that a misdiagnosis in and of itself is not enough to bring a case. One must show with expert witness testimony and other evidence that the physician’s diagnosis failed to meet the accepted standard of care for his or her specialty, region and facility. Expert witnesses must be vetted and hold the same general credentials as the defendant doctor or healthcare provider. Continue reading