Getting the most out of a settlement in a Medical Malpractice case.
Medical malpractice is a more common occurrence in Florida than most people realize. Unfortunately, medical malpractice is also a difficult case to win at trial—often leading to settlement negations.
The Bureau of Justice Statistics examined 2005 medical malpractice cases brought to trial and found that the plaintiff prevailed in less than twenty-five percent of these trials. These odds of a poor outcome at trial lead many medical malpractice victims to settle their case out of court. With an experienced, aggressive medical malpractice attorney who has the resources to properly investigate a case, injured patients can receive a fair settlement offer which justly compensates them for their losses.
If you or a loved one has been injured as a result of poor medical care, the Dolman Law Group can protect your rights during your difficult path to recovery. Our experienced medical malpractice attorneys fight hard for our clients to ensure they are fairly compensated for their losses. Our attorneys negotiate effectively and litigate aggressively when needed.
Starting Settlement Negotiations—Proving Negligence and Causation
Before determining the value of the patient’s losses, they must first be able to prove two things:
- That the doctor was, in fact, negligent; and
- That the doctor’s negligence caused the injuries and losses the patient has suffered.
These requirements may sound obvious, but the emphasis here is on the term prove. Knowing for a fact that something happened, and being able to prove it, are two very different things.
Proving Medical Malpractice Negligence
In order to prove negligence, the patient must present evidence that the doctor or health care provider failed to act with ‘due care’ in providing medical services. In order to establish due care, the facts of the case are measured against a standard of care set by a hypothetical “reasonably prudent doctor”.
This means, “Did the doctor act in a way that any sensible doctor would?”
Proving this often requires evidence of generally accepted medical practices, specific to the geographical location and time frame in which the patient was injured.
For example, a doctor cannot be negligent for failing to administer a treatment in 2005 which did not become a generally accepted medical practice until 2008.
Proving Causation in Medical Malpractice
Proving causation can be a more complicated issue than proving negligence.
First, there is the problem of the patient’s underlying condition (the reason they were seeing a doctor or in the hospital in the first place), which was not caused by the negligent doctor. Of course, the doctor can be responsible for any exacerbation or prolongation of that condition, but not the condition itself. However, the presence of the existing condition muddies the waters when needing to prove issues related to the medical condition.
There is also the problem of contributing factors. For example, a doctor may be negligent in failing to diagnose a condition which requires surgery but cannot be responsible for the patient’s bad reaction to anesthesia, which was unrelated to the misdiagnosis. When these contributing factors become powerful enough, another problem arises for the malpractice victim.
What is Superseding Causation in a Medical Malpractice Lawsuit?
“Superseding causation” occurs when these contributing factors actually cause the injuries, and the doctor’s conduct is so far removed that the injuries would have occurred regardless of the doctor’s negligence.
Going back to the surgery example, imagine that the doctor’s failure to diagnose only delayed the surgery by an hour, which did not give the patient any different prognosis than he or she would have had an hour earlier. Meanwhile, the only injuries sustained by the patient were the underlying condition and the surgical anesthesia – neither of which was caused by the doctor’s failure to diagnose. In this situation, the doctor would not face any legal responsibility (“liability”) for the injuries and have no legal obligation to compensate the patient.
Pure Comparative Negligence in Florida
In determining whether a doctor caused a patient’s injuries, it is important to note that it is possible for a doctor to be liable for part of a patient’s injuries. Florida follows the law of “pure comparative negligence”, by which each party is responsible for compensating that portion of injuries which he or she is responsible for causing. (See Florida Statutes §768.81.) Thus, even if the underlying condition or other factors contributed to the patient’s injuries, a negligent doctor can still be obligated to compensate only that portion of the injuries which were caused by his or her negligent treatment.
Negotiating the Value of a Medical Malpractice Claim
Once it has been determined that a doctor is liable for causing a patient’s injuries—and what portion of the liability they are responsible for—the value of claim must then be negotiated.
The value of a medical malpractice claim includes compensation for all losses sustained as a result of the negligent treatment, including:
- Exacerbated pain and suffering beyond that of the original condition
- Lost wages (for the time missed from work as the result of the doctor’s negligence, not the underlying condition)
- Decreased future earning potential as the result of permanent injuries
Do wrongful deaths caused by medical malpractice change their value?
In the event of a wrongful death, the patient’s estate can be compensated for all wages the patient could be expected to earn had he or she lived.
Surviving spouses and children may also have claims for loss of consortium after a wrongful death. This compensates the family members for their loss of companionship and protection that they would of had if their spouse or parent was alive.
How do you determine a dollar amount for a medical malpractice case?
Clearly, many of these losses do not have a defined dollar value which is where things get a little bit tricky and harder to predict.
How can one quantify the value of having lost a parent or spouse? What is the value of a leg or arm that was wrongly amputated?
Because these values are so indefinite, the bulk of settlement negotiations often focuses on the hypothetical values of a patient’s all-too-real losses.
Sadly, the indefinite value of these losses has caused medical malpractice lawsuits to become the target of political opposition. For years, opponents have denigrated medical malpractice and other tort claims as inflated, costly, unnecessary, and the result of greed.
In June 2017, House Republicans even proposed a bill to set a federal cap on “non-economic” losses in every medical malpractice case in the United States. This would mean that—aside from medical bills and lost income—no plaintiff could be awarded more than $250,000 for non-economic damages. That amount would have to cover pain and suffering, the physical losses associated with amputation or paralysis, and the emotional losses associated with a wrongful death.
While it is far from certain that this bill will pass, it is nonetheless concerning that every case could be assigned a definite value by remote politicians, without any consideration for the facts of an individual case.
Medical Malpractice Settlement Amounts
The national average payout for a medical malpractice case is approximately $242,000. Of course, this number can vary greatly depending on the facts of the case. But this statistics brings up the question: how is the settlement amount determined by a jury or by two negotiating parties?
The formula to determine how much a medical negligence case is worth is:
Economic Damages (past & future) + Noneconomic Damages (past & future) = Value of Case
Does Florida cap medical malpractice damages?
Currently, Florida law does have a cap on non-economic damages in a medical practice case (Florida Statutes § 766.118). The cap ranges from $500,000 to $1 million dollars depending on the type of practitioner and the facts of the case. However, this law was recently ruled unconstitutional by the Florida Supreme Court in June 2017. So in practice, there is currently no Florida cap on non-economic medical malpractice damages.
Experienced Representation for Your Medical Malpractice Claim
The medical malpractice attorneys at Dolman Law Group have decades of experience in negotiating and litigating medical malpractice claims. We fight hard to protect Clearwater residents from subpar medical care and to get them the compensation they deserve, outside or inside a courtroom.
Call (727) 451-6900 or fill out our contact form to schedule your free consultation with a personal injury attorney today. Our experienced, aggressive attorneys will make sure you receive full and fair compensation for your injuries and losses.