Medical errors and malpractice are the third leading cause of death in the United States. Not surprisingly, every year we receive thousands of phone calls and emails from people who are seeking advice about how to pick up the pieces from the damage caused by a medical professional’s negligence. Unfortunately, we have to turn down the vast majority.
We don’t turn them down because we don’t want to help them, or because we don’t want their case.
No, we have to turn most of them down because doctors, hospitals, and their insurance companies wield a vast amount of power in the Florida Legislature. Their army of lobbyists – and deep pockets for campaign contributions – make a huge impact on the laws and policies of this state, even though their interests do not often align with those of the general public and are actually harmful to those who have been injured as a result of medical negligence.
These legal and procedural hurdles make it exponentially more difficult to successfully pursue a medical malpractice claim than any other ordinary negligence claim.
The third leading cause of death in the United States; deaths caused by errors and/or malpractice, but those who cause harm are more protected by the law than those they damage. We think that’s wrong.
Here are the fifteen most common reasons we have to turn down med mal claims:
- Statute of Limitations – Medical malpractice claims generally must be brought within two years of the time the patient (or their representative) knew or reasonably should have known that an injury was a result of malpractice, but also, within four years of when the malpractice actually occurred, no matter when you learned of it. Both these time limitations must be satisfied, with few exceptions, or the potential claim will be time-barred.
- Standard of Care – Doctors are only legally required to provide a very baseline, minimal standard of care. They are not required to use best practices, provide A+ care, or do “everything they can” to help their patients. As long as they meet this minimal standard of care, you cannot sue them.
- Causation – Even if your doctor made errors that violate the standard of care, we must be able to prove that those errors are “more likely than not,” meaning probably not just possibly what caused your injuries. In patients who have sustained serious injuries or who have complicated health issues that led to allegedly negligent treatment, it can be very difficult to separate what injuries were caused by the underlying injury vs. any medical error.
- No Survivors – one of the saddest and most frustrating reasons we have to turn down cases is when a person dies as the result of medical malpractice, but none of their survivors are eligible to recover on their behalf. Under Florida’s Medical Malpractice Wrongful Death Act the only people who can recover for the loss of a loved one due to medical negligence are that person’s spouse and any children s/he had who were under the age of 26 at the time of the death. (Or if the victim was under the age of 26, their parents.)
- Speculative Damages – Often we see cases where there has been obvious negligence but because the patient was proactive about following up and getting corrective treatment, no actual harm was done. Even though something terrible could have happened if the patient did not take it upon themselves to continue to seek care, the law does not allow you to recover for something bad that might have happened, but didn’t.
- Expense – In order to initiate medical malpractice claim the claimant must provide a verified, written medical opinion from a healthcare provider with the same or similar specialty as the one they intend to sue. This means obtaining the patient’s entire relevant medical record (at $$/page) and having it reviewed by paid medical experts from across the country (at hundreds of dollars/hour) before we know if you have a viable case. If the case proceeds to litigation, expert witness costs increase exponentially as they are consulted on various issues, deposed, and asked to testify at trial. A typical medical malpractice case can cost hundreds of thousands of dollars by the time it goes all the way to trial—costs that come out the recovery made for the client. The damages awardable for anything less than a permanent, catastrophic injury or death are unlikely to offset these tremendous costs (and our fees and any healthcare liens) and leave anything left over to actually benefit the injured client.
- Discharged from Care – You cannot sue a doctor because they refuse to treat you or discharge you from their office. There are certain protocols they must follow when discharging patients but, outside of an emergency room, no doctor is required to treat you. Even in the ER they are only required to treat the patient up to the point they are no longer in immediate danger of loss of life or limb.
- Risks of Procedure – Every medical procedure comes with certain risks and none of them come with guarantees. A bad outcome from a procedure does not necessarily mean that anything was done was done wrong to cause that bad outcome. There is always the risk that surgery will not work or may even make the problem worse and there is always the risk of infection after any invasive procedure. Unless we can prove, with particularity, an actual error that “more likely than not” caused the injury, we cannot bring a successful case. This is usually impossible to do in cases of post-surgical infection.
- Sovereign Immunity – A number of hospitals and medical facilities in Florida are owned or administrated by government bodies and therefor receive the benefit of “sovereign immunity,” a legal doctrine that limits the ability of private citizens to sue the government. You can still sue them, but the amount you are allowed to recover is capped, as are the attorneys fees. Because medical malpractice cases are already so difficult and expensive to pursue, when recovery is artificially capped, they become almost impossible to make economically viable.
- Rude/Unprofessional – You cannot sue a doctor or other healthcare provider because they were rude to you, embarrassed you, or generally treated you poorly. Your option in those situations is to seek healthcare elsewhere.
- Privacy – There is no private right of action for a violation of your medical privacy; if reported to the department of medicine, the doctor may be disciplined or receive further training, but there is no compensation for the patient.
- Conflict of Interest – A number of local providers, especially surgeons and orthopedists, treat our injured clients. We cannot sue these providers because to do so would jeopardize the ability or our existing clients to receive treatment.
- Miscarriage – Although having a miscarriage is one of the most devastating things that can happen to a woman, it almost impossible to prove why a pregnancy may terminate early. There are so many reasons why a pregnancy may terminate on its own that is impossible to prove that it was caused by medical malpractice, especially early in pregnancy or when there is no autopsy performed.
- Suicide– Another tragic one is when a patient receiving psychiatric care commits suicide after being released from care or a change in their medications. There are just so many unknowns as to why any given person chooses to take their own life that it is almost impossible to prove up the necessary legal standard that it was “more likely than not” the result of medical negligence as opposed to some underlying factor or condition of their disease
- Baker Act – Often people who have been placed on temporary psychiatric holds wish to sue the facility for holding them against their will or mistreating them while they are there. However, because of potentially serious and devastating consequences of failing to hold or medicate someone who actually needs it (including harming themselves or others), great leeway is given to doctors’ judgment and decision-making in this treatment area. So long as the doctor is exercising his/her professional judgment, that will not be considered a violation of the standard of care.
None of these reasons will change unless the laws do, and while as plaintiff’s lawyers we fight for as many people as we can, we can’t change the laws. Not on our own. Find your local legislator here: https://www.flsenate.gov/Senators/Find and tell them these laws need to change.
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