President Obama mentioned tort reform aimed at reducing frivolous medical malpractice lawsuits in his State of the Union Address last week. Following suit, Democrats are considering various proposals; however, those proposals fall short of the Republicans’ goal of placing a $250,000.00 cap on non-economic damages for medical malpractice cases. Non-economic damages are those designed to compensate for pain and suffering.
The general public seems to have bought into the idea that there is a plague of frivolous medical malpractice lawsuits. In Florida at least, nothing could be further from the truth. Medical cases are extremely expensive, very complicated and hard to win. The majority of personal injury attorneys in Jacksonville do not even accept medical malpractice cases.
Prior to even being allowed to file suit in Florida, an attorney representing a client in a medical malpractice case must get the case reviewed by a doctor who is actively practicing in the same field as the doctor involved in the suspected malpractice. This is an expensive process as the reviewing doctor will typically charge anywhere from $300.00 to $750.00 per hour. Often, many hours are involved if the records to be reviewed are voluminous.
If the reviewing doctor signs a sworn statement that malpractice occured, only then can the process be started. The plaintiff’s attorney must then issue the doctor a pre-suit notice of intent to sue. The doctor has at least 90 days to investigate the claim. During this 90 day period, both sides must respond to requests for information or requests for statements to be taken.
Only at the expiration of the 90 day period can suit be filed. Suit typically takes one to two years to get to trial. During this time, several expert witnesses are usually needed and the expense to the plaintiff’s attorney typically ranges from $30,000.00 to $80,000.00 to handle the case through trial.
Juries are notoriously kind to doctors. By far, doctors prevail in the majority of cases that get tried. Medical malpractice insurers know this and do not offer signficant settlements in all but the most egregious of cases. Of course, even if the plaintiff does prevail at trial Florida has already enacted caps limiting recovery for pain and suffering.
Why would any attorney want to take on a frivolous case? They don’t. In fact, medical malpractice cases with merit are turned down all the time by attorneys. this is because unless the alleged malpractice caused catastrophic injuries, the value of the case will be far surpassed by the expense in hiring expert witnesses.
Its easy to be in favor of making it even harder to bring medical malpractice cases until you are the victim of medical malpractice and you learn that attorneys are not willing or able to accept your case.