The number of people in Florida and throughout the United States who are injured as a result of health care negligence is many, many times the number of claims actually brought in the court system. Between the significant expense which Florida laws require to bring a claim and the sympathy which most juries have for physicians, most attorneys simply are not in a position to gamble large sums of money unless they feel very confident that there is an excellent expectation of recovery.

One of the primary reasons attorneys may elect not to pursue a medical malpractice claim is strictly financial in nature. To successfully prosecute a medical malpractice claim, attorneys who handle such claims have to advance tens of thousands of dollars to investigate and litigate these matters. Florida law requires that all of the pertinent medical records be obtained by the attorney, usually at a cost of a dollar a page, and that these records be reviewed by a physician board-certified in the same field of specialty as the physician against whom you want to bring the claim. If, and only if, the reviewing physician feels there is a deviation from the prevailing standard of care can a claim be brought, regardless of how serious the injury is from the medical treatment received. As a consequence of this legal requirement, attorneys are not in a position to bring a medical malpractice claim unless the injury suffered by the client warrants the expenditure of tens of thousands of dollars in obtaining the records, hiring the experts, paying the litigation costs and so forth.

Another problem which attorneys have in considering whether a claim can be brought is whether the client has waited too long to contact the lawyer. The statute of limitations in Florida in cases involving medical negligence is two years from the date the patient became aware that he or she was the victim of malpractice. There is also a statute of repose in Florida that prohibits claims from being brought more than four years from the actual act of negligence, regardless of when the patient may have discovered the negligence. That is why the first questions you are asked is "when did you have reason to think the doctor was negligent" and "when did the doctor perform the procedure" or "when did you treat with this physician?" There is no need to consider undertaking an investigation if it is too late to do so.

If it appears it would be financially feasible to expend all of the sums necessary to conduct the legally required investigation into the claim, and if it not too late to bring such a claim, attorneys usually obtain the medical records, or request that the client do so, and have the records reviewed by a similar physician. Usually, that physician's conclusions fall into one of three categories: (1) while the patient clearly got a very poor result, the doctor's care of the patient fell within the acceptable standard of care, (2) the complication experienced by the patient was an unfortunate but not unexpected complication of the procedure, and could have happened even in the best of hands (in these cases, the complication is usually listed in the consent form for the procedure), or (3) the injury suffered by the patient is the result of a deviation from the prevailing standard of medical care. Only if the response an attorney receives from the reviewing expert physician falls into the third category can a claim for malpractice be commenced.

Once the attorney receives this opinion, he or she then prepares an affidavit which the reviewing physician must execute. Upon receipt of the executed affidavit, the attorney then has to send a Notice of Intent to the physician or health care facility by certified mail, return receipt requested, informing the defendant of their intention to bring a claim against them for medical negligence. That letter (Notice of Intent) commences the claim, and at that point the defendant physician or hospital has a statutory duty to investigate the claim and attempt to resolve it within ninety days. The attorney for the patient is required to provide all of the pertinent records to the doctor with the Notice of Intent and affidavit, and the doctor's attorney then usually commences a search to find a physician to refute those allegations of negligence. Regardless of the case, regardless of how totally inappropriate the care may have been by the doctor, the defense counsel for the physician or hospital can usually find someone to support the doctor's care. The physician's insurer usually requests the doctor's lawyer to continue the search for a doctor to sign an affidavit stating there was no negligence until one can be found.

The doctor is required by law to respond within ninety days, and to respond by doing one of three things: (1) deny the claim, which requires an accompanying affidavit from a similar health care provider attesting to his or her belief that there was no deviation from the standard of care, or that no injury occured, (2) offer to admit liability and request that the matter of damages be submitted to an arbitration panel, or (3) make an offer to resolve the claim. If the physician's lawyer elects the second option, then there are caps enforced on the non-economic damages which the patient can recover. Rarely do you ever see the second or third option exercised by the doctor, and even if they do exercise the third option, the offer is usually a minute fraction of what the case is worth.

Due to the fact juries have been traditionally sympathetic to physicians, large jury verdicts are the exception, and not the rule. Medical liability insurers know this, and as a consequence usually make low offers. It is the very rare medical malpractice case which gets settled before a suit is filed, and if any offers are going to be made, any realistic offers are usually not made prior to being "on the courthouse steps." Getting to the "courthouse steps" is a long and arduous process, and usually takes at least eighteen months to two years after the lawsuit is filed. Many depositions will undoubtedly be taken of most of the client's other treating physicians and witnesses, and the client will have to undergo an extensive deposition which can and usually does take several hours. The attorney will be there with the client throughout the deposition. The process is not one to be taken lightly by the client, and the attorney knows he or she will have to spend many dozens of hours, if not hundreds of hours, in the prosecution of a medical malpractice claim. That is another reason why attorneys do not wish to bring such claims unless the patient's injuries are very serious.

Kelaher Law Offices, P.A., is cautious about the cases we accept for review, and only if the reviewing physician is very strong in his or her opinion that the treating physician clearly deviated from the prevailing standard of care do we proceed with the presentation of a claim. We are always open to discussing any potential medical malpractice claim with you.