Medical Malpractice Cases
Jim Kelaher and his staff have been handling medical malpractice cases for over seventeen years, and have lived through all the changes in the laws which hold physicians and hospitals accountable for their negligence. Since the Florida Medical Association and the various hospitals around the state have very powerful lobbying means, the law has continued to evolve in a manner most favorable for health care providers. Our office has made every effort to continue to pursue negligent physicians and nurses despite these changes.
Many people believe they have been wronged by a physician or hospital because they receive a poor result from treatment or surgery. Unfortunately, a poor result cannot be used as evidence of malpractice, and the opinion of a similar physician is now a prerequisite to bringing a medical malpractice claim. Many poor results are unfortunate but acceptable complications of the procedure or treatment, and not the result of a doctor’s negligence. Unfortunately it is very expensive to fully investigate these claims and so most attorneys cannot undertake this investigation on every case. Because of this, most physicians can escape liability for negligence where the injuries to the patient are not of significant severity.
In the seventies and early eighties, a law suit could be filed against a physician for his or her negligence so that their patients could seek just compensation when that health care provider was negligent. In this manner, a doctor could be held accountable just like a lawyer, accountant, architect or any other professional provider of services. This is no longer true. The legislature has made it increasingly difficult to sue a physician, and now makes an injured victim jump through hoops and wade through a morass of legal paperwork before a lawsuit can even be filed.
Under the current law, before a doctor can be sued, the patient (or in most cases, their legal representative) must obtain copies of all relevant medical records. Most providers charge a dollar a page for these records, which can end up costing hundreds or even thousands of dollars merely to obtain copies of the records. Once these records are obtained, then a similar health care provider must review these records for a determination of whether there was a deviation from the standard of care. If the reviewing expert believes there is a viable claim against the doctor, this expert then must sign a verified written medical opinion, usually in affidavit form. This affidavit must then be sent to the physician by certified mail, return receipt requested. After doing all of this, then the victim of that doctor’s negligence will be asked by the doctor’s defense counsel to produce all of the medical records, as well as answer numerous questions about the claim. The doctor’s insurer has 90 days to conduct it’s good faith investigation of the claim. This whole process serves little purpose but to delay the victim’s prosecution of his or her claim by as much as half a year.
At the conclusion of the 90 day period, called a pre-suit period, the doctor’s attorney almost invariably sends a letter denying the claim, and includes an affidavit from another similar physician stating either there was no negligence or if there was negligence, it caused the patient no harm. Regardless of how egregious or outlandish the negligent doctor’s conduct might have been, the doctor’s attorneys always seem to be able to find a doctor willing to stick up for another physician. It is at this juncture that a lawsuit is filed.
Lawsuits by their nature are expensive to prosecute, and expensive to defend. However, malpractice insurers rarely settle cases until shortly before trial, unless the malpractice is undeniable and the patient’s injuries are clearly worth well more than the doctor’s limits of liability insurance. In many instances, the insurers refuse to pay even under these circumstances. Rarely is a case settled before the patient’s expert witnesses are deposed, and there is a good reason for this. Whenever a doctor’s malpractice insurance company settles a claim, it is required to report the settlement, and the amount of the settlement, to Tallahassee. The Department of Insurance keeps a record of these settlements, and physicians wish to avoid being on this list. There are also web sites which are referred to as “Bad Doctor Databases” and all physicians wish to avoid being on these lists. Consequently, the physicians are usually adamant they did nothing wrong to their insurers, and it is not until another doctor of similar specialty voices his or her criticisms of the doctor’s care before the insurer feels comfortable settling the claim. Because of this, the litigation can take well in excess of one or two years to conclude.
During the course of the litigation, depositions are usually taken of all parties, as well as all treating doctors. Other discovery takes place, including interrogatories, or written questions, as well requests to produce written records, such as medical records, marriage licenses, birth certificates and the such. As the trial nears, the depositions of the expert witnesses are usually the last to be taken, and then a mediation is usually scheduled right before trial. A mediation is merely a settlement negotiation meeting where an impartial third person, usually an attorney skilled in the mediation process, is utilized to attempt to effectuate a settlement of the case. If this fails, the next step is a trial. Malpractice trials usually take at least three or four days, and some can and do take weeks. Depending on the verdict, appeals can be taken if the side unhappy with the outcome believes the judge committed error during the handling of the trial, or in ruling on any pre-trial motions. Appeals usually take at least a year from beginning to end.
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.