A CT scan showed you had cancer, but the doctor failed to diagnose it. An OBGYN error during labor and delivery deprived a fetus of adequate oxygen during birth, leading to permanent brain damage and disabilities. Hospital staffers gave your mother the wrong dose of a powerful medication, resulting in her death. These are just a few examples of scenarios that can spur South Florida medical malpractice lawsuits.
Actually winning, though, is another matter.
In a recent analysis by NiceRx, Florida ranked No. 3 in the country over the last decade for the most reported incidents of medical malpractice. Yet it ranked 43 out of 50 for medical malpractice payout totals. The actual number of Florida medical malpractice incidents is almost certainly much higher than what’s reflected on court dockets – a direct result of Florida lawmakers’ efforts to make it inherently tougher to pursue these cases compared to other kinds of personal injury and wrongful death claims. The proof burden is higher, the filing deadlines are shorter, and there are tighter restrictions on who has standing to file and how much money can be awarded. It’s an awful shock for some families when they learn that neither a tragic outcome nor even proof of a medical mistake necessarily guarantees a successful medical malpractice claim. In fact, those truths may not even get your foot in the door of the courtroom.
We outline all this not to discourage prospective claimants, but to underscore the importance of hiring a civil lawyer who truly knows what they’re doing. You need a legal advocate with extensive experience specifically in Florida medical malpractice litigation and a proven track record of success in claims similar to yours. The law firm should also have the upfront resources necessary to gather the extensive evidence that will be needed to build your case. Whoever you hire should be frank about:
- The viability and potential value of your case.
- The anticipated timeline and general procedure.
- The reality of any sizable roadblocks to success.
You deserve a fair and honest assessment of your odds so that you can make informed choices about how best to proceed.
South Florida Medical Malpractice Case Hurdles
Some of the specific reasons it’s tough to successfully sue for medical malpractice in Florida:
- F.S. 768.21. One of the most significant challenges in medical malpractice cases – specifically those in Florida – is this damages statute that substantially limits who has standing to file a claim if someone dies because of medical negligence. Florida prohibits anyone besides a spouse by marriage OR a child under the age of 25 from suing doctors, hospitals, or other health care providers for medical malpractice on behalf of another adult. Our South Florida medical malpractice lawyers have criticized this law before, and it’s been referred to on occasion as a “free kill” law. It axes any possibility of accountability for medical negligence if the person who died wasn’t married and doesn’t have kids younger than 25. Adult children over 25, domestic partners, parents of unmarried adults without children – none of them have statutory standing to sue for medical malpractice wrongful death in Florida. There have been a few efforts to change this law (most recently H.B. 6011), but thus far without success.
- Sovereign immunity damage caps. Public hospitals and employees of public health care systems are protected by Florida’s sovereign immunity laws. That protection can be waived in medical malpractice cases, but the absolute most a plaintiff could be awarded is $200,000 against one government agency and $300,000 for multiple government agencies. That might sound like a lot, but it’s way less than what it would take to justly compensate parents of a permanently disabled child or a family who lost their head of household/sole provider. Just the cost to properly investigate and prove such a claim could eat up a sizable portion of those damages. Even when the mistakes were egregious and survivors clearly should be awarded much more, the process of pursuing additional damages is complicated legally and requires petitioning Florida lawmakers. For South Florida medical malpractice lawyers, we could be approached by two people with the exact same case facts – one occurring in a private hospital and the other in a public hospital – and we might accept the first case and decline the second. It just comes down to numbers. It can require tens or even hundreds of thousands of dollars upfront for a law firm to adequately prepare what’s needed to prevail in a complex medical malpractice case. But with damage caps, it could mean even a successful effort is a wash.
- Proof of causation. This is an element of all injury and wrongful death cases, but it can be particularly tough to establish in medical malpractice claims. Plaintiffs must be able to prove by a preponderance of the evidence that the injury or illness at issue was a direct result of medical negligence. Medical negligence is defined as conduct or care that falls below the applicable standard for the defendant’s specialty, education, region, etc. The mere fact of a poor outcome isn’t enough to win. Neither is evidence of a mistake if it can’t be causally linked to the patient’s injuries. Establishing that typically requires expert witness testimony – sometimes testimony from numerous experts. Expert witnesses must be paid for their time, and they can be expensive. Plaintiff attorneys in these cases work on a contingency fee basis, meaning they aren’t paid unless and until you win, and their firm typically covers upfront costs for the investigation, expert witnesses, etc. Your South Florida medical malpractice lawyer needs to level with you if it makes sense to pursue a case given what it’s worth versus what it’s going to cost to prove it.
- Pre-suit investigation requirement. Florida requires pre-suit investigations before a medical malpractice claim can proceed through the court system. Both sides need to hire medical experts to testify on their behalf. Following three months of investigation by both sides, the defendant has the option to extend a settlement offer, ask for arbitration, or reject the claim outright. This process is expensive and time-consuming. Even if the claimant has a winning case, they must carefully consider the cost-benefit analysis. It’s yet another reason why plaintiff attorneys want to be fairly confident in success before agreeing to take on Florida medical malpractice cases.
- Patient age influences case value. We have laws that protect people over 40 from discrimination in housing and employment. However, when it comes to medical malpractice claims, the age of a patient can directly impact how much a case is worth. Some of the elements considered in medical malpractice damage awards deal with things like: How much did the patient lose in wages? To what extent was quality of life/ability to engage in once-enjoyed activities impacted? A person who is older, retired, not as active prior to the incident will have a lower case value than someone who is young or in their prime of life. Also, as people age, they tend to be more likely to suffer chronic health problems and may be more vulnerable to surgical complications – meaning causation in their case can be tougher to prove.
- Lack of doctor insurance. Florida statute requires doctors to carry medical malpractice insurance, typically up to $250,000. If they don’t, they are required to inform their patients at reception sign-in. More than 8 percent of doctors don’t carry any medical malpractice insurance. If a doctor without insurance has personal assets, you could go after those in a medical malpractice claim, but their assets are often structured in such a way that it can make collecting on those judgments tough. So even if you win, collecting on those damages can be difficult.
All this said, don’t write off the odds of your case until you first speak to an attorney. The statute of limitations for medical malpractice claims in Florida is two years (half what it is for other types of injury claims), so it’s important not to delay inquiries. Most medical malpractice cases are settled prior to trial, with the average settlement in Florida being about $268,000.
Contact the South Florida medical malpractice 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.
F.S. 768.21, Damages
More Blog Entries:
Florida Medical Malpractice Laws Fail Adult Children, Their Parents, April 14, 2022, Palm Beach Medical Malpractice Lawyer Blog