One of the main questions our South Florida medical malpractice lawyers get from potential claimants at the outset is: “What are my odds of winning?”
It’s a prudent question to ask before getting too far ahead of yourself. The answer isn’t always straightforward – even when it’s clear a medical mistake was made and the injuries are serious.
A medical malpractice lawyer cannot guarantee you a winning outcome. That said, an attorney with extensive experience and skill can often give you a good idea of how a case is likely to go – and what legal hurdles must be overcome.
A 20-year longitudinal study of medical malpractice claims published in the journal Clinical Orthopaedics and Related Research revealed that defendant doctors prevail in 50 percent of cases where there’s strong evidence of medical negligence. This undercuts the oft-repeated (but clearly erroneous) tort reform advocate assertion that medical malpractice cases are easy wins. Further proof: That same analysis showed settlement sums directly correlated with the strength of the evidence. Basically: If your evidence is thin, you won’t get far.
This is not to say you can’t win. What it does mean is that even with strong evidence, the proof burden is high and there are likely to be significant challenges. Hiring a legal advocate with a proven track record of success is often your best shot.
Beyond that, so much depends on the specifics. Factors that can impact Florida medical malpractice case outcomes:
- The complexity of the procedure, care, or diagnostic issues in question. There’s more opportunity for something to go sideways in a medically complex situation versus a simple procedure or diagnosis. The legal standard to which healthcare providers are held takes this into consideration.
- Whether an emergency was involved. Emergency treatment is inherently hastier and high-pressure. There’s less time to weigh all options, consult all the reference materials, etc. In these situations, mere seconds can make the difference between life and death. Making the wrong call in an emergency may not necessarily be medical negligence – even if a similar decision under less pressing circumstances is medical negligence. This is not to say medical negligence can’t occur in an emergency. It absolutely can. But the standard to which the law holds health care providers may be adjusted with this in mind.
- The health care provider’s level of education, skill, available tools. A doctor in a small, rural clinic isn’t generally expected to provide the exact same level of care as a doctor working in a well-staffed, state-of-the-art teaching hospital. Similarly, a general family practitioner isn’t going to be held to the same standard of care for diagnosing a heart problem as a thoracic surgeon.
- How much time has passed since the injury/death. In general, you have two years in which to file a medical malpractice injury or wrongful death claim. There are limited exceptions.
- The severity of one’s injuries. Medical malpractice is only compensable if there was physical pain, injuries, and/or death. These incidents are undoubtedly traumatic, and impacted patients can collect monetary damages for emotional anguish – but only if there were physical injuries too. A physician might make a colossal mistake – but if the resulting physical injuries were fairly minor, it may not be worth pursuing a claim.
- Whether you are eligible to file a claim. The right to file a medical malpractice claim is typically straightforward in injury cases where the claimant was the patient. (Eligibility might also be curbed if the patient signed a waiver upon admission, but an attorney can assess the legal language in that agreement to determine whether that’s going to be an issue.) However, if the patient dies due to medical negligence, the only survivors eligible to pursue a medical malpractice wrongful death case are: Legally married spouses and children under the age of 25. That’s it. It’s a problematic loophole, but as of this writing, it’s still the law in Florida. If you’re 26-years-old and your divorced-not-remarried-mom died due to medical malpractice and you don’t have any younger siblings, there may be no grounds to a claim.
Something that often assures potential clients is the fact that attorneys practicing medical malpractice law have incentive to be straightforward with their odds. Tort lawyers are paid on a contingency fee basis. If you don’t win, your lawyer isn’t getting paid attorney’s fees. That makes taking these cases a risk – one that most attorneys are only going to accept if they have at least a fairly good intuition about how it’s going to play out. On the flip side, that can make it more difficult to find a lawyer willing to work with you if the evidence is weaker. But if you have a strong case: You’ll likely know it pretty quickly.
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.
Twenty Years of Evidence on the Outcomes of Malpractice Claims, February 2009, Clinical Orthopaedics and Related Research
More Blog Entries:
Florida Medical Malpractice Ruling: Hospital Liability May Rest on Degree of Control, Sept. 22, 2022, Palm Beach Medical Negligence Lawyer Blog