Skip to main content

Book by Tom Baker says that no malpractice lawsuit can occur under $250k damages, is this true?

Miami, FL |
Attorney answers 4


Yes and no. Here's an explanation I wrote for many other responses which you may find interesting.

I am typing this to copy and paste to so many questions which deserve an answer but for which many attorneys may not take the time to respond.

Most of the questions begin with “Can I sue for .....?”

That’s not really the question you are asking. What you really want to know is whether some attorney will undertake your claim at their expense and on a contingent fee so that you pay nothing unless the attorney wins.

That must be the question being asked because anyone can sue for just about anything they perceive as a wrong if they want to pay an attorney to do it. The problem is finances. It may not be productive to spend a large amount of time and a lot of money to risk a chance of recovery of a small amount.

So this is the answer to all of those questions and I will post this over and over in response.

Every litigation case costs money and time to pursue. Medical negligence cases can take hundreds of hours if not thousands. The costs (money needed to be laid out by the attorney) can be tens of thousands of dollars if not far more than $100,000 at times (depending on the case). And NO case is a guaranteed win. So to take that risk attorneys need to have a significant amount of damages and fault which is somewhat clear.

Loss of life, a limb, a bodily function, one of the 5 senses all qualify as significant. Even then the legislature has prohibited pain and suffering claims for the death of a parent by adult children in most cases.

Nothing in this response should be considered as a lack of empathy. If a surgeon leaves an instrument inside you and has to re-operate to take it out and there are no damages other than the second surgery, it’s likely too small to handle by most – seek legal advice. None of this note belittles the fear and pain of patients who are wronged. Their fear and pain is genuine.

It’s common to pick on the attorneys – until you need one. Remember that next time someone screams TORT REFORM. The legislature and courts (with Republican Governor appointments to the Courts) have TORT REFORMED more people out of pursuing real (but small) claims. That’s my view.

This is not intended as specific legal advice to you or about your case. The only way to provide that is for you to have a conference with an attorney so they can ask you questions about your claim, read records and learn far more than is contained in your note. No attorney-client privilege is established by this response.


The reason for this is that the costs of medical malpractice cases is a deterrent to bringing suits unless the damages are larger. Especially when you consider that the medical bills are usually taken out of the settlement through liens by insurance carriers, often making the case less than financially viable.

Of course there are many exceptions and variations based on each state's law.

See a local attorney to see if you have a case worth pursuing

Best of luck

AVVO DISCLAIMER I am licensed in Minnesota only and my answers on Avvo assume Minnesota law. The answers I provide are for general information only and are NOT INTENDED AS LEGAL ADVICE and therefore must not be relied upon. Legal advice must be based on the interaction between an attorney and client and specific exact facts and the law. I do not retain clients without a signed RETAINER AGREEMENT. The Avvo forum does not allow for the discussion and the interaction necessary to form a complete legal analysis. Therefore the answers given to any specific question would most likely be different if there was attorney-client interaction. The exchange of information through this forum does not establish such an attorney client relationship. An attorney-client relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged nor are they confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and statutory time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in the answers to any question, if you are an interested party you should promptly and personally consult with an qualified attorney for legal advice licensed in the proper jurisdiction. Finally, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.


In Florida, because of the expense of these lawsuits, you will not find a competent lawyer to take a medical malpractice case if the likely damages are under $250,000. In fact, the threshold is probably higher than that.

A possible exception might be a case in which the client pays the litigation expenses

This is a summary based on incomplete facts. You should not rely on it as legal advise. No attorney-client relationship is intended to be formed.


I haven't read that book. In practical terms, however, most malpractice cases which go forward do have catastrophic injuries at issue, such that the potential recovery of compensation would far exceed the amount of $250K.

Malpractice litigation is very challenging, and in most contingent fee agreements, the lawyer takes a huge financial risk that the amount which is recoverable will adequately compensate the client, cover all case costs (e.g. experts, medical records, depositions, witness fees, jury consultant, etc.) which have been paid up front by the lawyer, and pay the lawyer for his/her time and effort. These financial risks are often tens of thousands of dollars, and in the most complex cases, it is common for expenses to reach into 6-figure case expenses.

In addition, there are usually significant outstanding medical bills or health insurance liens which have to be paid back, on behalf of the client.

Any experienced lawyer will look at these expenses, as well as what is the best possible outcome, or recovery, for the patient/client. When dealing with a very limited pool of funds, such as $250K, an attorney can see that it may be very difficult, if not impossible, to make sure the client is adequately compensated while all of the big expenses to prosecute the case, outstanding bills, etc.

So, as some counsel have mentioned here, an injured patient may have a very difficult time finding a lawyer to take on a malpractice case where they may be realistically limited to recovering $250K for the patient, costs, counsel fees. Every case turns on its facts, however, so depending on circumstances, one might still find a lawyer to pursue the claim.

DISCLAIMER: We do not have an attorney-client relationship. Only those persons who have a signed written fee agreement and authority to represent with me is an actual client. This response does not form an attorney-client relationship, nor is it intended to be anything other than my educated opinion or viewpoint. It should not be relied upon as legal advice. I recommend you consult a lawyer if you want professional assurance that this information, and your interpretation of it, is appropriate to your particular situation. Do not act on any information in this response without seeking legal advice from an attorney in your area.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer