By Jeffrey “Jack” Gordon
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.
EDITOR’S NOTE: Jeffrey “Jack” Gordon, is State and Nationally Board Certified in the areas of Civil Trial Law, and Medical Malpractice Law and can be contacted at 813-221-1366 or at www.FightNegligence.com
