November 2, 2022
In our prior two alerts, we discussed some of the difficulties, specifically in the State of Florida, to successfully prove a violation of the Standard of Care and Causation in medical malpractice cases. In this alert, we will discuss Damages, which some may say is the most challenging factor of every successful case. Because even if you prove a violation of the Standard of Care or Causation, none of that matters if you cannot secure sufficient Damages.
The Importance of Discussing Damages at the Outset
Someone suffers an injury, there are Damages. Correct? Unfortunately, that is not always true in certain medical malpractice cases where there is a wrongful death claim. Florida Statute 768.21 (8) states that adult children (25 years and older) are not entitled to individual claims for pain and suffering if their parent dies as a result of medical malpractice.
A heartbreaking example of this is when one parent pre-deceases the other. If the surviving parent then dies as a result of medical malpractice, and is survived only by adult children, the adult children DO NOT have individual claims for pain and suffering. But if that parent had died as a result of a car accident, the adult children WOULD have individual claims for pain and suffering. One of the most emotionally difficult things to have to do as an attorney is explaining to a potential client that even though you believe a healthcare provider committed malpractice, they do not have a legal claim for pain and suffering.
What About Caps on Damages?
The Florida Supreme Court held caps on non-economic damages to be unconstitutional. But if a defendant, at the conclusion of pre-suit, makes an offer to arbitrate, there are caps on non-economic Damages. One of the things a malpractice lawyer has to consider when evaluating a case is whether it is a case that the defendant(s) may offer to arbitrate. Making the potential client aware of that possibility and the potential impact on the value of their case is an extremely important factor.
Factoring in the Costs to Litigate
In the prior alerts, we spoke about the need for the use of expert witnesses in malpractice cases and how, from a practical standpoint, it drives up the costs to litigate these cases. Consider what the likely range of Damages may be, and if there is enough potential recovery to off-set the costs. If the Damages likely to be recovered are not enough for the case to make financial sense, this is another example of having to have a difficult conversation with a potential client.
These are just a few of the issues surrounding Damages in medical malpractice cases. It certainly seems simple enough that if you have an injury, there are going to be Damages. Whether Damages can be recovered, how they are recovered, and whom they can be recovered from, are all important questions you need to ask when evaluating a medical malpractice case. The attorneys and medical professionals of Haliczer Pettis & Schwamm have extensive experience evaluating the value of these types of cases. If you have a potential medical malpractice case or questions about recoverable Damages, and are interested in learning more about your options, please contact Ken Miller, or any member of our legal team to discuss.