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If no malpractice attorneys interested in a case because not rewarding enough, can I take doctor to small claims court?

Dunedin, FL |

I had a lasik procedure and my pupils are larger then the treatment zone. The doctor never told me that, on my records I found it measured larger before the procedure. His own informed consent papers warn about that. He merely told me I was a perfect candidate for it. I'm about given up looking for an attorney after about 20 have declined to take it. What can I do on my own then? I don't want him to get away with it merely because lawyers don't think it's rewarding enough. Can I sue in small claims, or any other ideas if can't get a malpractice attorney to take the case?

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Attorney answers 8


This is tough as you did sign the consent warning of possible adverse results. You will have a very hard time proving damages on this enough to find a lawyer will take the case. You have the right to sue in small claims court as anyone does, but that would be a choice that you would have to make for yourself. I am sorry to hear about this.


Yes, you may represent yourself. Consider, however, that if 20+ attorneys said "no," then they may be on to something.

You are alleging malpractice, so you must comply with the Florida statutory requirements set forth in Florida Statutes, Chapter 766, which includes, for starters, the requirement that you obtain an affidavit from a qualified medical expert who says the doctor breached the applicable ophthalmology standard of care. That is just the beginning f the maze of pre-suit requirements one must comply with in Florida before initiating a medical malpractice action.

Failure to comply means your case gets dismissed, and then you get to pay the other sides costs (and even potentially their fees, as well).

You can thank all the so-called "tort-reform" laws (which are not really reform at all, and instead just set out, and did, immunize the entire health care profession in Florida). In 2003 Gov. Bush signed the last tidal-wave round of regulations in this area. They have been tweaked a little bit every other year or so, and every single year the Florida Medical Association, insurance companies, and Florida Hospital Association (among other interest groups) seek even more immunity, caps on damages, etc. Every. Single. Year. No Joke. This is why Florida is among the toughest States to bring a completely valid, vetted, claim.

You do not get a pass because you are representing yourself, and you have to weight the costs of prosecuting the matter.

You can file a complaint with the Medical Board, but this is to discipline the doctor and not to compensate you.

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Yes but it will prove very difficult to prevail given the facts you presented.

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New Jersey Medical Malpractice - Lasik Procedure - Finding an Attorney. By Patrick Amoresano
Although your case is located in Florida, there are certain fundamental things that are common to medical malpractice cases throughout the country. For the most part, they are time-consuming, expense, often complicated, and almost always seriously contested claims. Consequently, no experienced medical malpractice attorney is going to take a case unless the time, expense, effort, and risk is justified by the monetary value of the case. In addition, potential clients need to understand that even when a doctor's negligence is crystal clear, this does not mean the claim has monetary value. Case values are measured according to the seriousness and permanency of the patients injury, and how much pain, suffering, and disability this has already caused, and will continue to cause in the future. These are not the kinds of cases you take to small claims court, as the cost of the medical expert you'll need to prove the case will likely most exceed the limited amount of money you can recover in small claims court.


I am sorry you were not treated well. The laws concerning medical malpractice claims in Florida are expensive and difficult to navigate. I don't believe a pro se plaintiff would be able to prosecute such a case without an attorney. Even the pre-suit requirements are tough. Perhaps you can pay an attorney hourly to see if you can get the doctor to attend mediation with you and perhaps avoid a lawsuit.


Pro se is always a bad idea. Best bet is to offer an attorney a retainer fee to cover costs if the case is not strong.

Only 29% Contingency Fee! Phone: 215-510-6755


Because the insurance companies fight every med Mal case to the end, many attorney, especially attorneys who understand the law, will not take a case where the damages are not catastrophic.


Suing in Small Claims Court does not remove the requirement for you to comply with the Florida pre-suit medical malpractice statute. So, this case will cost you more than it is worth pursue.

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. You may call me 772-562-4570; email me, or visit my website