By Cindy Krischer Goodman, South Florida Sun-Sentinel, Nov 21, 2022.
Your mammogram showed you had breast cancer but no one caught it. Your doctor botched your surgery because he himself was ill, or the hospital staff gave you the wrong medication and it led to a disability.
There are lots of reasons Floridians want to sue their doctors, radiologists, surgeons, and hospitals — and many do.
Florida had the third largest number of medical malpractice reports filed among the country’s 50 states between 2012 and 2022, according to newly released research by NiceRx, a medication-access company that works to help people afford prescription medications by keeping costs down, according to the company’s website. However, while 11,410 medical malpractice lawsuits were filed last year, the total payouts totaled only $2.9 million, which ranked Florida 43rd in the country.
Florida medical malpractice attorneys say their phones ring round the clock with callers who want to sue. But those attorneys turn away the majority of those callers. So even if you were wronged by a doctor or medical professional, or by a hospital error, it could be nearly impossible to get a lawyer to represent you.
“There are so many factors we have to evaluate,” said Daniel Harwin, a medical malpractice attorney with Freedland Harwin Valori in Fort Lauderdale. “Greater than 99% of the time, we chose not to take the case,”
Here are the reasons why in Florida it is so hard to sue for medical negligence — and win:
- Florida prevents anyone other than a spouse or child under 25 from filing medical malpractice lawsuits against doctors or hospitals on behalf of another adult. Critics have derided this as the state’s “free kill” law.
“That means adult children over 25 cannot sue on a parent’s behalf,” said Joseph Landy, a medical malpractice attorney with Lesser, Lesser, Landy & Smith in West Palm Beach. “We have had calls from people who lived as husband and wife or someone who had no spouse but adult children. We have to tell them they don’t qualify as statutory survivors. The hospital or practitioner is able to get away with it. It’s heartbreaking.”
- If you sue a public hospital or the employee of a public health system for medical malpractice, you can win damages only up to $200,000 against one government agency or $300,000 against multiple government agencies. This is because they have something called “sovereign immunity.” If you think you are owed more, there is a complicated legal process in which you can petition the Florida Legislature and request more damages.
“Think about that … in Broward, you have two public health systems — Memorial Healthcare and Broward Health,” Harwin said. “These hospitals make up a significant percentage of patients in Broward and they have sovereign immunity and statutory caps that limit the exposure of the hospitals and doctors. Even in the most egregious circumstances, $300,000 is the most they are liable for.”
David Di Pietro of Di Pietro Partners in Fort Lauderdale said most lawyers avoid those suits: “You can take a case with the same facts and if it involves a public hospital rather than a private, you might not take the case.”
Di Pietro says it’s basic math: “For most cases, a plaintiff lawyer invests over $100,000 worth of time and $100,000 worth of expenses. With that cap, it doesn’t make financial sense to go after those cases.”
- You must be able to prove that your injuries were directly caused by the doctor’s negligence. So, if your doctor demonstrated medical negligence, but you didn’t have any injuries, you do not have a medical malpractice suit.
For example, if your doctor prescribed medication that conflicted with drugs you were already taking, you would have a case only if the interaction led to a bad outcome such as internal bleeding.
“A lot of times people want to sue for complications from surgery,” Di Pietro said. “If it’s a known complication of that type of surgery, that’s not malpractice.”
- In Florida, you have two years from when you know or should have known of medical harm to file a medical malpractice lawsuit. Babies who have neurological damage have five years.
A new report shows Floridians tend to wait.
On average Floridians waited about 1½ years after the malpractice occurred to file a claim, according to an October report by Florida’s Office of Insurance Regulation that surveyed claims in 2021. On average, claims were closed about two years (733 days) after they were filed. Some of those claims were closed without a settlement or payout.
“A lot of times people are getting treatment and don’t realize right away they aren’t getting better,” Di Pietro said. “They start asking themselves ‘Can I fix this or should I pursue some kind of legal recourse?’”
- Florida has a “pre-suit Investigation” requirement which means you have to hire a medical expert to testify about how doctors should behave in similar situations, and how your physician’s actions deviated from that standard. After 90 days of investigation by both sides, the potential defendants can either make a settlement offer, reject your malpractice claim, or offer to arbitrate (there are caps on how much you can get in arbitration)
Lawyers for doctors and patients say this pre-suit investigation is expensive but can also lead to cases being dropped early when they prove to have no merit.
When an attorney is evaluating whether to take a case, he is doing a calculation about how much the pre-suit and litigation phases will cost.
“What happens is you may have a case that could proceed and be winnable, but practically it would make no sense. If we have to spend more money on expert fees and depositions than we could recover, then technically it’s a win, but not a real win,” Landy said.
Why patients sue
The three biggest reasons Floridians sue their doctors are failure to properly diagnose a patient, medication mismanagement, and surgical errors, according to attorneys.
The three top settings in Florida where those who brought claims said malpractice occurred are hospital inpatient settings, hospital emergency rooms and physicians’ offices, a report released in October by the Florida Office of Insurance Regulation shows.
Most people who are injured and sue ask for compensation for medical expenses, lost wages, and pain and suffering. You can also sue for punitive damages — to punish the doctor — but you would need to prove an intentional act or a reckless disregard for a patient’s safety.
The older you are, the less likely an attorney will take your medical malpractice case.
Attorneys say there are several reasons for this:
“There is time and expense associated with prosecuting cases,” Landy explains. “On significant malpractice cases, it is not uncommon to invest six figures. There are costs for experts and depositions. When a lawyer who works on contingency is fronting the costs, we want to be extremely confident in the ability to recover those costs.”
With older people, recovering those costs is tricky.
A big portion of the money you get when you sue for medical malpractice is for lost wages. But if you are older and retired, your income won’t be affected by an injury as much as someone who had years of earning potential derailed.
Also, older adults are more likely to experience health problems and suffer complications during surgical procedures. You would have to prove the healthcare provider’s negligence, and not your declining health, led to the injury.
“It is unfortunate, but the cold truth about the legal system is most people receiving health care in Florida are the elderly and when there is malpractice, most lawyers won’t take on the case,” Di Pietro said. “Medical malpractice cases are expensive and law is a business, too. It is not economically feasible for a law firm to put up the cost and litigate when the return is much less.”
Under Florida law, physicians generally are required to carry medical malpractice insurance or set aside $250,000 to pay medical claims. If a doctor chooses not to carry medical malpractice insurance, they have to post a sign in the reception area letting patients know.
Many doctors hold title to their assets in ways to make it difficult to collect a judgment from them personally.
In 2019. the USA TODAY Network learned nearly 6,900 Florida doctors with active medical licenses, about 8.3% of the total, don’t carry malpractice insurance or other coverage,
Attorneys specializing in medical malpractice say they usually won’t sue uninsured doctors.
“I have pursued cases against uninsured doctors and collectability is a major issue,” Landy said. “You should never knowingly go to a doctor who does not carry medical malpractice insurance. It’s likely that they either cannot afford the insurance or they are uninsurable because of numerous prior claims against them.”
Attorneys say it can take as long as four years for a case to go to trial and get resolution.
Nationwide, physicians win 80% to 90% of jury trials with weak evidence of medical negligence, 70% of borderline cases, and 50% of trials in cases with strong evidence, according to a study published in the National Library of Medicine of two decades of jury verdicts.
In Florida, most medical malpractice cases settle before trial. According to a 2019 medical malpractice payout report using data from the National Practitioner Data Bank the average Florida malpractice payment was estimated at $268,466, while the national average was 348,000.
Di Pietro said in Florida, the county in which you file the lawsuit matters. “Suits in metro areas will settle easier. The smaller, more conservative counties will challenge you more. If you can get a medical expert to corroborate, that means the case has some level of merit and there’s a good chance it will settle.”
When they do go to trial, he said, “they are usually hotly disputed as to whether there was negligence and someone was visibility injured or died.”
Michael Drahos, a Gray Robinson attorney in West Palm Beach who defends doctors and nurses accused of medical malpractice, said the cases that go to trial typically take years and involve bad results, but that doesn’t always mean a doctor did something wrong.
“Those cases are usually complex and there are differing views on what was the right call to make,” he said. “There are experts on both sides who will argue over what could have been done differently.”
Background your doctor
Has your doctor been sued for malpractice?
In Florida, the way the system is designed, you may never know. Only doctors who pay out more than $100,000 need to report it to the state. And if a hospital settles a claim on behalf of a doctor, it may not be disclosed at all.
The American Medical Association reports more than one in three physicians, or 34%, have had a medical liability lawsuit filed against them at some point in their careers.
“The information available to the public is incredibly limited and it’s challenging to get complete and comprehensive history on a physician,” Harwin said.
Searching court websites may reveal a lawsuit. You can search a doctor’s license and history through the Florida Department of Health.
A doctor’s perspective
Dr. Richard D. Kimmel of Boca Raton said a large number of cases are pursued because of bad outcomes, not malpractice or malfeasance.
Kimmel notes that patients often want to blame ER doctors. However people who arrive at the emergency room are at highest risk either because of acute trauma or an exacerbation of a chronic condition that they did not seek care for until an emergency situation develops. “Like so many physicians who are legally obligated to treat whoever walks into the ER, perhaps lawyers would see things differently if they were obligated to take on every person’s case who walked into their place of business,” Kimmel said.
“It is my contention that 99.9% of physicians provide reasonable and appropriate care to their patients,” he said. “Someone engaged in true medical malpractice should be held accountable, but that is the rare exception in my experience and observations.”
Sun Sentinel health reporter Cindy Goodman can be reached at email@example.com.