Common Defenses of Medical Malpractice in Florida

Jun 25, 2022

When you are considering filing a lawsuit for medical malpractice, you must be aware of the common defenses of malpractice. Most malpractice plaintiffs attempt to show that their doctor departed from accepted medical practices, but this is not always the case. Sometimes, physicians use treatments outside of the accepted standard of care. This defense is called the "substantial minority" defense, which says that a large group of respectable physicians endorses the treatment method in question.

The first defense is based on the notion that the patient's behavior contributed to their injury. For instance, a surgeon may have advised the patient to avoid lifting heavy objects while recovering from a shoulder surgery. That patient later helped a friend move his wheelchair and damaged the shoulder, undoing all the work of the surgeon. The defense claims that the patient's failure to comply with instructions is due to a "non-malpractice" defense.

The second common defense is the statute of limitations. The defendant claims that the patient's cancer was terminal when it could have been diagnosed properly. Thus, no damages are awarded for the malpractice. However, some states allow defendants to introduce evidence of collateral sources, such as government benefits programs or insurance policies. These defenses can reduce a physician's financial responsibility. This article explores some of the common defenses of medical malpractice in Florida.

In addition, a physician can be deposed under oath. A deposition takes place when a physician answers questions under oath and records it for later use. A deposition can be one of the most vivid legal encounters a plaintiff will have. Depositions are a part of the discovery process in the United States, which gathers information in preparation for trial. A deposition can last from one to several hours.

Other common defenses of medical malpractice are based on the theory of loss of chance. This doctrine provides legal redress to a patient when a doctor is negligently reducing a patient's chance of survival. Even if the patient had a 50 percent chance of survival, the defendant can still be held liable. The doctrine accounts for the difficulty in foretelling medical outcomes. Moreover, courts have recognized that a plaintiff's case will fail when the doctor's negligence is the cause of a patient's condition.

The cost of litigation against a physician may be substantial. A medical malpractice lawsuit will typically take years to prosecute, and the plaintiff's lawyer must pay for court costs, expert testimony, and attorney time. Several hours of physician time will be required to investigate the case, examine records, interview experts, and research into medical and legal literature. As such, a medical malpractice lawsuit can be costly, and not every physician can afford it.

The damages a victim receives from a medical malpractice lawsuit will vary depending on the specifics of the case. The patient may be entitled to full recovery from a malpractice provider, but he or she may be required to repay some of the damages, such as medical bills or lost wages. The doctor may even be held liable for some or all of the damages. However, the compensation a patient receives will depend on whether the damages were due to negligence or were unavoidable.