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Does the Medical Malpractice Reform Act Strike a Balance of Protection or Leave Victims High and Dry?

Jeffrey R. Davis

The Medical Malpractice Reform Act’s Impact on Medical Malpractice in Florida

According to the National Practitioner Data Bank in 2011 there were a total of 692 Malpractice Payment Reports. This has been a decrease of forty-five percent when in 2001 there were a total number of 1,281 Malpractice Payment Reports. This begs the question of whether Florida’s doctors have become better at their profession or whether statutory reform has diminished the amount of actions that can be brought against physicians. Evidence indicates that statutory reform has restricted the amount of actions brought against physicians.

The Medical Malpractice Reform Act

The Medical Malpractice Reform Act (“Act”) may be the reason why there has been a decrease in malpractice suits. The Act was enacted in recognition of the dramatic increase in medical malpractice insurance premiums, the consequent increase in medical care costs, and the functional unavailability of malpractice insurance for some physicians. It was the statutory intent of the Florida Legislature in enacting the Act to provide a plan for prompt resolution of medical negligence and, to that end, provide for investigation and arbitration of such claims. Therefore, the main intent of the Legislature seems to be to stop frivolous claims, promote settlements, and reduce the high cost of medical malpractice insurance. The act primarily seemed to create protections for physicians.

The Act, among other things, establishes the individuals who shall be held civilly or criminally liable for malpractice; the proper elements that an injured patient must prove to be able to bring a claim for medical malpractice; and the applicable statute of limitations or time frame in which an injured patient can bring such claim.

The Act specifically states that:

“In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care providers, the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably similar health care providers …. [and] if the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.”

The Criteria for an Injured Patient to Have a Claim of Medical Negligence in Florida

An injured patient must meet certain criteria under the act to pursue a claim of “medical negligence” in Florida:

  1. The injured patient must prove that the health care provider did not fulfill his duty of providing a professional standard of care.
    1. It must be first established that the individual providing the care is deemed to be a “health care provider.”
    2. This is demonstrated by the use of expert witness testifying that the injury that resulted from the professional standard of care was not within the necessary or reasonably foreseeable results.
  2. Furthermore, after proving that the health care provider breached that duty, the injured patient must prove that the breach of that duty was the cause of the injuries.
  3. Lastly, the injured patient must provide an adequate amount of damages for the purpose of compensation.

A Big Obstacle for Victims of Medical Negligence

This is quite an extensive list of items that an injured patient needs to prove during a time that they are stressed, in pain, and suffering from other psychological and physical pains that were caused by the “medical negligence.” With such a high hurdle for injured patients, this ultimately begs the question of whether the Legislature’s goal of diminishing frivolous claims was accomplished, or whether there are injured patients who had a valid claim, but due to the fact that they did not fulfill the “elements” of the statute were not able to bring a claim.

Viable Medical Malpractice Claims in Florida as Declared by Florida Courts

The following situations have been declared by Florida courts to be viable medical malpractice claims:

  • Misdiagnosed infection resulting in brain damaged baby
  • Delayed delivering resulting in brain damaged baby
  • Death of pregnant women, also injuring newborn
  • Death of pregnant women
  • Death due to hypertension during pregnancy
  • Improper abortion
  • Death due to Untreated Infection
  • Surgical sponge left in abdomen
  • Fall in hospital
  • Fall from hospital bed

Gaps in the Medical Malpractice Reform Act?

Nevertheless, there was a specific case where under the Medical Malpractice Reform Act, a pharmacy is not deemed to be a health care provider, so when a customer who sued a pharmacy for injuries the customer’s son received when the pharmacy allegedly “misfiled” a prescription was not a valid claim because the element of a “health care provider” was not met. It begs the question of what remedy should be offered to the customer’s son for the pharmacy’s mistake? Who should be held liable if the pharmacy cannot be deemed a health care provider?

Even though it is vital to protect health care providers who give quality medical services and important to shield them from liability due to frivolous claims, it is equally important to note that the individuals who are establishing the legal standards are health care providers and not the actual injured patients. As stated above, the legislature passed the Medical Malpractice Reform Act to stop frivolous claims, promote settlements, and reduce the high cost of medical malpractice insurance. Have medical malpractice victims that don’t meet the criteria to pursue legal action been neglected by the act? Was it the right move?

Does the Medical Malpractice Reform Act Strike the Right Balance in Protecting Health Care Providers AND Victims?

The Medical Malpractice Reform Act was passed by legislators for the purpose of reducing the high costs of litigation to health care providers. A medical malpractice act should encompass as its legislative intent the protection of the injured patient, and not just merely the monetary protection of the health care provider. In this instance, even though the Medical Malpractice Reform Act may promote settlements and stop frivolous claims, it seems to do so for the benefit of health care providers and to the detriment of the injured patient. Thus it seems injured patients that may have had a viable claim are now being prevented from bringing their claim to court and asking for compensation for their injuries.

Share your Thoughts

Should the Medical Malpractice Reform Act be changed? What’s the best method of changing the act so that less medical malpractice victims are disqualified from pursuing legal action?

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