Florida’s Injured Patients and Doctors are at War

Nobody likes to lose. The feeling trial lawyers have when they lose a significant case must be like what generals feel when they lose a war. Loss is a part of life. And in the world of Florida personal injury trials, both parties can walk hopefully into a courthouse, but only one will leave with a favorable verdict.

Lawyers who defend doctors, hospitals, and insurance companies for malpractice claims get paid by the hour, regardless of the result. Certainly, the best defense lawyers should do everything they ethically can to ensure their clients escape liability–or paying for whatever they are being accused of. And when that happens in one of my cases I respect and congratulate my adversary.


In professional boxing, when and if both fighters make it to the final rounds still standing, the judges score the fight and declare a winner. Personal injury trials are much the same. If both parties can make it to the end of a long trial, the jury votes and decides the winner. Boxers that are unhappy with the decision can file a protest, usually to no avail. Litigants unhappy with a verdict or a trial judge’s decision can appeal.

Most Florida medical malpractice defense lawyers have longstanding relationships with their clients. It is very common for hospitals to retain a particular firm to handle all of their claims, ranging from slip and falls in the waiting room to birth trauma. Those lawyers get to know intimately how those hospitals function and get to know the people who run them very well.


For the lawyers who represent injured patients and their families, it is a much different relationship. Because of their ability to work with defense clients on a regular basis, defense lawyers can help train their clients in what to do and say and how to keep records to avoid being sued in future cases. By contrast, rarely if ever do we attorneys for the plaintiffs know our clients before the event. And because of the nature of our work, it is even more unusual to represent a client more than once.


Case selection for a Miami plaintiff personal injury lawyer who focuses on medical malpractice is perhaps the most difficult aspect of any case. Florida’s legislature has made suing a doctor or hospital a complex and expensive process. Virtually every legislative session, Florida’s medical malpractice laws change– sometimes in subtle and little-known ways, requiring lawyers to study the statutes constantly, the way some brokers watch the market. Every shift in the law makes it more and more difficult for injured patients to hold medical providers accountable for their actions.

Lawyers who defend doctors and hospitals usually bill by the minute for the services they provide. In the computation of their time, defense clients pay for all the costs of defending the case up front. This includes retaining experts, travel, transcripts and jury consultants. In contrast, those of us who represent injured patients almost always take the cases on a contingency basis; in other words, we get paid only when we win and collect.


Winning is important, but collecting is even more important. Therefore, one of the first issues we have to address when screening potential malpractice cases is whether or not there is insurance coverage since Florida permits its doctors to practice without requiring that they maintain medical malpractice insurance. That means no matter how horrifying the facts of a given case may be, without the means to collect for the injury, many potential cases are simply not financially feasible for plaintiffs’ lawyers to accept.

I have always found it sad that Florida law requires a doctor to have insurance to drive him- or herself to the hospital to perform a surgery, but allows the same doctor to operate on people without the same requirement.


Assuming there is coverage to pay from, the next concern is whether or not there is time left to file the case. Florida Statutes Section 95.11 gives a very short two-year statute of limitations to sue a doctor or hospital for medical malpractice, in contrast to four years for virtually every other type of personal injury claim. This is perhaps the greatest injustice perpetrated against the injured patients by Florida law. Even for the most experienced lawyers, medical malpractice cases are the most complex, difficult, expensive, and time- consuming to understand and prove. And in many cases, the injured patients fail to realize that they are the victims of medical negligence for months or years after a procedure, diagnosis, or surgery goes wrong.

Despite the complexity of those injuries, Florida gives doctors a 50%-better chance of escaping liability based on the time limits to file a claim if they injure a patient on the operating table as opposed to in the parking lot of the hospital. Often we reject potentially viable claims simply because the two-year time limit has expired.


Lastly, is there a survivor? Florida’s current medical malpractice wrongful death law essentially gives doctors and hospitals a license to kill unmarried patients or patients without children under the age of 25. The law requires that a patient killed by a health care provider must be survived by a living spouse or a child under the age of 25. That law discriminates against same-sex partners, the elderly, and young single patients.

My clients are astounded when I am forced to explain why I cannot undertake the representation of their widowed 72-year-old mother who developed bedsores that lead to sepsis or the unmarried live-in boyfriend who died from the failure to diagnose a stroke at an urgent care center.

I did select a case on behalf of the family of a nurse who committed suicide after I came to believe he was improperly discharged from the care of the very same South Florida hospital where he had worked for twenty years. The trial judge dismissed the suicide malpractice case without ever letting me present the facts to a jury. I appealed, but Florida’s Third District Court of Appeal affirmed the trial court’s dismissal without even issuing an opinion to explain their ruling. Our motion for rehearing is currently pending. If the appellate court denies that motion, the war will be lost.

This ruling affects the legal rights not only of my clients but also of every family who loses a loved one in Florida because of the negligence of a doctor or hospital in failing to diagnose and treat a suicidal patient. And, as in war, the generals rarely feel the results as much as the countless innocent victims that a bad decision can affect.

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