Why Do I Turn Down Medical Malpractice Cases?

The Top Seven Signs of A Medical Malpractice Turndown in Florida 

I receive hundreds of calls asking me to review potential medical malpractice cases. Unfortunately, I often need to turn down these potential cases.

I don't turn them down because I don't want to help. Often, I'm forced to turn down cases because of Florida law. For decades, lobbyists for hospitals and insurance companies have shaped it. The law often reflects their best interests, rather than the people’s best interests. As a result, malpractice’s hurdles make it harder and costlier to bring than a generic negligence case.

Here are the seven top reasons I turn down potential cases:

1. The Statute of Limitations Has Expired.

In Florida, a plaintiff generally must bring medical malpractice claims within two years of when the patient (or their representative) should have known that harm was due to malpractice. This timing is two years shorter than general negligence cases.

A plaintiff must also file within four years of when the malpractice occurred, no matter when the patient or representative learned of it. With few exceptions, a potential claim must begin before both time limits, or it is time-barred.

If a potential case comes in with an expired statute of limitations, there is nothing I can do but turn down the case. Also, if there are only days left before the case is time-barred, I'm often forced to turn down cases. In those situations, I won't have enough time to assemble experts, medical records, and evidence required to support a claim.

So if you believe a claim may exist, refer to a medical malpractice lawyer immediately. If you believe a claim is about to be time barred, you should have the potential client file a Petition for Extension. This petition is filed with the Clerk of Court where the case will be filed. The Petition usually costs $42. Once the payment is received and the petition is filed, an automatic 90-day extension of the statute of limitations is granted. Still, any delay in bringing a medical malpractice case has the potential to make the case weaker, so seeking an attorney immediately is always the best course of action.

2. There Are No Statutory Survivors in a Death Case.

In my view, most unjust civil law in Florida relates to the medical malpractice causing death. Under Florida’s Medical Malpractice Wrongful Death Act, only a few people can recover for the loss of a loved one. A person’s spouse can recover, and any children he or she had who were under the age of 26 at the time of the death.  If the victim was under the age of 26, the victim’s parents can recover. Otherwise, there is no recovery for survivors. As a result, unmarried people over 25, widowed people, and people with older children have no survivors.

If the lost loved one has no statutory survivors, the only claim that exists is for the Estate of the loved one. That claim only includes medical bills, funeral costs, and savings that would have occurred but for the death. As a result, unless the loved one was wealthy and a tremendous saver, cases without statutory survivors are not viable for firms under Florida law, given the expense needed to bring such a claim.

3. Sovereign Immunity Artificially Limits Damages.

Many medical facilities in Florida have ties to government entities. So these facilities receive “sovereign immunity.” This legal doctrine limits private citizens in lawsuits against the government. Patients can still sue, but the amount one can recover is capped, as are attorneys' fees. With a limited recovery, the likelihood that costs, fees, and liens will eat up the entire recovery is often too high to justify a lawsuit.

4.  Although Better Care Was Possible, The Standard of Care Was Met.

Healthcare providers are only required to provide a baseline standard of care. They are not required to use best practices, provide A+ care, or meet a gold standard. As long as they meet the standard of care, there is no viable claim.

Bad results don’t necessarily mean there is a deviation. Every medical procedure comes with risks. There is a risk that surgery will not work.  There is a risk surgery makes the problem worse. And there is the risk of infection after any invasive procedure. Without an expert testifying that a deviation of the standard of care occurred, I am forced to turn down the potential case.

5. Although The Standard of Care Was Violated, The Violation Did Not Cause Actual Harm.

Even when a healthcare provider violates the standard of care, I must prove that the violations likely caused the harm. For patients with complex medical histories, separating harms due to preexisting problems from harms due to medical errors may prove too difficult.

Often, I see cases where there has been clear negligence, but no permanent harm occurred. Even though something terrible could have happened, the law does not allow you to recover for something bad that might have happened, but didn’t. In these cases, there are administrative methods to investigate the doctor, but no way to recover monetary damages.

7. Expense Makes Bringing A Lawsuit Pointless For All But The Most Serious Cases.

As alluded to above, to file a medical malpractice claim in Florida, the claimant must provide a verified, written medical opinion. This opinion must come from a healthcare provider in the same specialty as the at-fault provider.

So to bring a claim, firms like mine must first pay for the patient’s entire relevant medical record. While there are efficient ways to get these records through the HiTech Act, this takes time and money. Then, firms like mine have it reviewed by paid medical experts from across the country. These experts charge for their review time, at hundreds of dollars an hour. Only after this initial review can there be confirmation of a viable case.

As a case proceeds, expert witness costs increase. After depositions and trial, a case can cost hundreds of thousands of dollars. These costs come out of the recovery made for the client. As a result, damages for less than the most catastrophic harm often don't offset costs, attorneys' fees, and healthcare liens. In those situations, where it is likely no money will benefit the client, I will not take the case. Doing so would expose harmed people to the stress and frustration of a lawsuit without benefiting them, which makes no one happy.

I hope this list sheds some light into why potential malpractice cases are turned down.