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How does having history of anxiety or depression weaken any malpractice claim?

Miami, FL |

Have been told that history of anxiety weakens my malpractice claim.

Even though claim is orthopedic issue. Is it because mild psychiatric problems like anxiety reduces the credibility of plantiff's testimony even though completely unbiased testimony from anyone is an impossibility. Or is it because depression causes somatic pain so defense seys well you're not feeling the pain from the surgery complication you're feeling pain from your history of depression.

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Attorney answers 4


I disagree with Mr. Upton a bit. All Medical Negligence claims have a 'pain and suffering' component to them as damages. To use a measurement for this hypothetical, if you had two quarts of anxiety and depression before and now have three quarts, they will pay (if found liable) for ONE quart of the anxiety, not all three. Two were pre-existing having nothing to do with the medial negligence EVEN IF YOU WIN.

Since most med neg attorneys take cases like this on a contingent fee and get paid a percentage only if they win and on what they win, a pre-existing injury may lower the damages. Further if there is a credibility issue of 'he said-she said', having a psychiatric history may cause a jury to believe the other person if there is nothing else to go on to figure out who to believe. THAT may affect the win or loss of the claim.

Speak to an attorney who knows medical negligence. If your case has been rejected by someone who knows this field because of that reason, it is likely a damage issue or that the fault proof is too difficult or this history will affect your believability on some issue.

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.


MedMal cases are quite complex and are "battles of the experts;" yours and your former doctor's. Their experts will likely argue your pain is a function of your pre-existing depression; your expert will argue that you suffer physical pain from a negligent orthopedic procedure.

You need to discuss this with an experienced medmal attorney. Contact the FL and Miami bar associations for referrals.

The foregoing is for general information purposes and does not establish an attorney-client relationship.



If you had no history of anxiety and depression all your life, but the stress is as a result of the injury, bad medical care, and other external factors, then whatever the psychological trauma in addition to the physical injury the plaintiff suffered is additional damages against the defendants. In California, pain & suffering is only $250K. Other torts apply if the defendant organizations and their lawyers conducts are outrageously abusive.


It may reduce it slightly, but without knowing all the facts and circumstances, I couldn't give you a complete analysis.

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Regardless of how it may affect your case, you should still seek legal counsel to review the pertinent details of your case and understand your rights moving forward.

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