Florida Medical Malpractice Victims Face Huge Challenge Taking On The Medical Profession

February 4, 2009
By Dan Irving , Esq. on February 4, 2009 8:48 AM | | Comments (0)

A victim of medical malpractice in Florida has a difficult time going up against the medical profession. It amazes me how many doctors whom the defense hires will just say anything. It's just as amazing that so many juries believe these doctors, who make a huge living testifying almost exclusively for the medical profession. No matter how obvious or egregious the behavior, medical professionals being sued can easily find paid and frequent experts to say that there was no negligence on the part of the physicians or medical professionals who are being sued.

We have all heard the expression: "doctoring the records". Many people may not know where that expression comes from. Well, let me explain.

Where possible, because I always suspect that the 'doctoring' of records will occur, we attempt to obtain the records from the doctor without the doctor knowing that a lawyer is sending for the records. Once the doctor or hospital or nursing home finds out there is a potential that there will be a lawsuit brought, the process of 'doctoring' the records begins. In many cases, once the medical provider is on notice that a claim or lawsuit may be brought, the physician or medical providers begin the process of adding to, deleting, or changing the original records to cover themselves.

In some cases, the physician may not even be aware that a patient that the doctor sent home suffered a serious medical condition, or even died. What we do in our law firm, if that's the case, is we will surreptiously have one of our medical professional friends send for those records under the pretext that they are treating the victim, without the doctor whom we are trying to obtain the records from knowing that a serious injury or enough death has resulted to their patient. There have been many times where we receive one set of records through our medical professional friend, only later on to receive the 'doctored' set when our law firm sends for the records. 'Doctored' medical records make it easier for us to show the jury that the medical professional who 'doctored' the records is trying to hide something.

For example, in one our cases where our client suffered congestive heart failure after being dispensed diet pills by a pill-pushing doctor, we found out for the first time at the doctor's deposition that the records were doctored where one of the crucial pages he showed up with was completely different and rewritten from the original document. Interesting, lying through 'his teeth', the doctor disingenuosly explained that the record was re-written for health insurance purposes. Shortly after his deposition, this case settled.

In another of our cases where a woman suffered anaphalytic shock and almost died as a result of the failure to diagnose the reaction to the medications prescribed by that physician, again the records were changed and we hired a handwriting expert to substantiate the alteration of records. The case settled shortly before trial.

The alteration of medical records is commonplace. An attorney handling medical malpractice cases must suspect the 'doctoring" of the records from the outset. Not every case will yield the result, but being aware that it goes on is crucial to helping prove the victim or family's case.

Statistics show that persons suing doctors win less than 30% of the jury trials against the medical profession. The statistics are slightly better when one includes a hospital or medical institution, as juries find it more difficult to find for the victim in cases where the doctor is sued personally and no corporate entity is sued.fault. These statistics fluctuate wildly depending upon whether there is a tort reform movement going on at the time the case is heading to trial. Right before and shortly after Amendment 3 in Florida, one of many tort reform efforts in Florida over the last twenty years, was on the ballot in November 2004, the statistics of success for victims going to trial in medical malpractice cases plummetted to substantially less than 20%.

Because of these statistics, lawyers who handle medical malpractice cases in Florida generally take only the most catastrophic cases and results. The 2004 enactment of Amendment 7, which states that if a physician has three judgments against them for medical negligence, makes it even more difficult to win a case if the jurors on the case are aware of that law. For that reason, the lawyer must make certain before the case begins that the judge instructs the lawyers for the defense that shall not inform the jury of that law.

Medical malpractice cases not only take hundreds or even thousands of hours of the law firm's time, they may also require the outlay of hundreds of thousands of dollars of the law firm's money. As a result, a law firm handling medical negligence cases must know what they are doing in order to increase the odds of winning the case and to ensure that the law firm is successful in handling the medical malpractice cases the law firm chooses to accept.

Dan Irving is a Board Certified Civil Trial Lawyer with more than twenty-seven years handling medical malpractice cases in Florida

Leave a comment