Sam is a 25-year-old man who is experiencing leg pain. Sam goes to see his physician, Dr. Gray. The physician examines Sam and finds a lump behind his knee. He tells Sam that there is probably nothing to worry about, but, in an abundance of caution, Dr. Gray coordinates for a biopsy and the sample is sent to pathology. Unfortunately, the pathology report sent to the doctor confirms that Sam is suffering from a type of cancer.
The cancer is serious, but with proper treatment, Sam will have 40 percent chance of remission. Tragically, Dr. Gray fails to inform Sam, so no treatment is provided. Within six months, the cancer has invaded his bloodstream and Sam’s chance of survival is now only 1 percent.
But Sam cannot hold Dr. Gray legally responsible for medical malpractice here in the state of Florida.
A plaintiff in a medical malpractice action in Florida must show more than merely a decreased chance of survival. The plaintiff must show that the injury “more likely than not” resulted from the medical mistake.
The “more likely than not” standard is satisfied only when a plaintiff can prove there was a 51 percent or greater chance the injury or death would not have occurred but for the actions, or lack thereof, of the health-care provider. So, if the patient has less than a 51 percent chance of survival or treatability prior to the physician’s error, that patient cannot bring legal action against that doctor. The Florida Supreme Court case of Gooding v. University Hospital Building, Inc. (1984) established the rule that in negligence actions—specifically medical malpractice—a plaintiff must prove proximate cause by showing it is “more likely than not” (greater than 50% likelihood) that the defendant’s negligence caused the injury.
Medical malpractice laws tend to favor physicians more than patients and should be revised to protect the consuming public. Patients must be able to hold physicians and hospitals responsible to make medical care safer for everyone.
It's not enough for medical malpractice to occur. It must be proven. There are alarming statistics that exist from John Hopkins Medicine, the BMJ, and even the World Health Organization that speak on the repercussions of misdiagnosis, unsafe care and preventable harm.
Furthermore, there are reports of adverse hospital incidents in relation to new medical malpractice claims as prepared by Florida’s Agency for Health Care Administration. For example, take the four year data they compiled showing 19,885 incidents to only 3,177 medical malpractice claims as shared by Public Citizens Congress Watch, a non-profit who fights for safe and affordable health care. That's a roughly 6:1 ratio. So for every 6 adverse incidents in the hospital, only 1 medical malpractice claim was filed.
"The vast majority of adverse hospital incidents in Florida don't become medical malpractice claims. If that's not worth sounding an alarm, I don't know what is."
So why are these numbers so low if organizations like The American Medical Association, the Florida Medical Association and their allies in the business community have consistently made allegations such as there being a “malpractice crisis", “many frivolous lawsuits,” an “out-of-control legal system,” and more? Clearly, this 6:1 ratio would need to be first matched at 1:1, and then exceeded on the claims side to incidents, before there would even be a chance at any of their allegations coming true.
But these powerful organizations were not created to protect the consumer. And in order to keep these numbers far more in their favor, they have made the process to bring forth a medical malpractice case much more financially and legally burdensome on the victims and the law offices when compared to other forms of personal injury. There is a systemic problem that exists where the patient takes more and more risk while those holding more power take less and less.
