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The public perception that medical malpractice cases regularly result in large awards of money is an unrealistic one. Even if a plaintiff prevails at trial, there is no guarantee that any money will be forthcoming. A study from the Department of Justice, based on data from 43,000 cases, reveals that for seven states between 2000 and 2004 (Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas), most medical malpractice cases that were decided for the plaintiff ended with no money going to the plaintiff.

For cases in which a plaintiff prevails and is awarded compensation, many states are now capping recovery at a maximum of $250,000. The amount an attorney can recover from that statutory maximum is now also restricted. In Florida, attorneys’ fees in such medical malpractice cases, unless agreed to otherwise, are limited to 30% of the first $250,000 (exclusive of reasonable and customary costs), and 10% of all damages in excess of $250,000 (exclusive of reasonable and customary costs). If an attorney seeks more than the statutory limit for fees, the attorney is regulated by the Rules Regulating the Florida Bar. The rules limit attorneys’ fees to 33 1/3% to 40% for any recovery up to $1 million; 30% for any recovery between $1 million and 2 million; or 20% of any portion of the recovery exceeding $2 million.

Average costs of preparing for a medical malpractice case can now average $50,000 to well over $100,000 and require years to prevail at trial. Plaintiffs are often left permanently disabled as a result of the incompetence or negligence of doctors and/or hospitals, and deserve to be adequately compensated for their suffering. By capping recovery in medical malpractice cases, states are not only affecting the compensation that plaintiffs receive, but also the opportunity for plaintiffs to get their day in court. Because preparation costs for medical malpractice cases are getting so high, bringing a case to trial presents a serious financial risk, as attorneys might not be able to recover their costs even with a monetary judgment. Statutory caps on medical malpractice verdicts for pain and suffering hurt those most deserving – mothers, children, and the elderly. Big wigs still get 100% compensation for the loss of earnings, so the corporate executive hurt by malpractice will still be compensated for all his lost earnings but the child and the mother won’t. Are children less worthy?


  1. Gravatar for jim

    Arent you arguing for a change in forum to arbitration? More money to the claimant, quicker process, lower costs, jury of peers. Why not? I read today in Florida that 3336 med mal claims were settled in 2008 for 700 million of which 189 million was costs and 511 million in indemnity.

    You should be clear that the cap is only for pain ans suffering, all other causes of action are not capped. Past and future economoic loss, past and futire medical costs- all w/o caps.

    Re limits is attorney fees- The best TT firms have their clients sign a waiver to get around the statute. This is a loophole predesigned prior to the 2003 Florida tort reform. Great cases always get referred to the best TT firms w/o much consideration given to the fees at endgame.


    jim vp medmal claims

  2. Gravatar for Ed Normand

    Jim, I am a little puzzled by your comment because it refers to arbitration and then says "jury of peers". Do you mean a jury of the health care provider’s peers or peers of the victim in an arbitration process? If it is a jury of the health care provider's peers that is the fox guarding the henhouse. I think that is part of the problem we have now in the Medical profession failing to police itself and failing to discipline health care providers that repeatedly harm others. We have surgeons in Orlando that have committed multiple wrong site surgeries and nothing happens. Then they repeatedly hurt patients and the malpractice rates rise for all. If they would get tough on bad doctors then there would be less malpractice. It is well known that most of the malpractice is caused by a small percentage of health care providers. By the way, the Florida Bar is very tough on bad lawyers. Many lawyers are disbarred or suspended each month and rightly so. Maybe that is part of the reason why there are fewer legal malpractice claims than medical malpractice claims.

  3. Gravatar for jim ohare

    Thanks for your comment Ed:

    A jury of peers is meant for the defendant isnt itand not the accuser?. Lets say you pick a doc, I pick a doc and they agree on the 3 doc. we each bring an expert for liability causation and damages. we each get 2 hrs to x examine.

    last year 700 mill spent on medmal, 190m of that expenses. 510 mil in indemnity, maybe 175 mil of that in atty fees and another 75 mil for your costs. So 440 mil of the 700 mil does not go to the injured. Not good and a problem.

    Do you think that it would be fair to have peers decide if the roux en y nissan fundoplication was done correctly, or have the guy flipping burgers to weigh the complexities?

    Bad docs have to go. At Physicians Ins co - we have defined a way to target the best risks. Turns out that 16% of the docs cause 83% of the claims.

    How about all docs need insurance to practice? regards Jim vp medmal claims

    The DOH is very tough on docs

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