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What are the reasons that a medical malpractice case would be dismissed (as in before a trial)?

Miami, FL |

In regards to answers on avvo that say that a large number of claims are dismissed. What would cause a dismissal? If med malpractice cases are not black and white, I don't understand what would cause a clear cut unanimous dismissal.

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Attorney answers 7


This is impossible to answer. One reason would be that the presuit requirements were not followed. Another would be that the wrong party was included in the action. Another would be that the matter was not properly pursued within 1 year as required by statute. There can be many others. If you really have a case and this happened have someone review the actual paperwork.

The answers given are limited to the facts as given and presumed by the answer itself. Without seeing actual written documentation or having a conference to more fully explore the issues, this short answer has only limited application. Make sure to seek legal counsel and provide all documentation to get assistance in making informed legal choices., 305 377 1505


No one can give you an answer without looking at the Order for Dismissal.

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.


No way to know without seeing the order.

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There are many reasons for a case being dismissed before trial. With medical malpractice cases, it is not uncommon for a defendant to demonstrate AS A MATTER OF LAW that the complained of medical treatment fully conformed with well accepted medical practice. If such a motion is made, the Plaintiff would have to demonstrate through a supported affidavit of a physician that the treatment did not so conform. I would always look to the Plaintiff's physician's affidavit to see how well it was drafted and supported. Other reasons could be a failure to prosecute, or a failure to produce documents or records. You may wish to have an attorney review your file to explain to you what happened.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email -


Mr. Stein and Mr. Gold both gave informative answers. There are many reasons a case could be dismissed pretrial. Generally they go back to the fact that the case had a serious flaw from the beginning, or was poorly handled by the plaintiff's lawyer, or both.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


Many reasons. In Florida, for example, failure to comply with pre-suit requirements, plaintiff failing to tell the truth, expert failing to satisfactorily establishing a causal link between the breach of standard of care and injury, etc.

Cases can be dismissed for many reasons -- on substance as well as on procedure. They can also be dismissed at different stages, such as at the initiation of the lawsuit for failing to comply with pre-suit procedures, or even right before trial (or during trial) if the plaintiff's expert does not hold up on substantive questions about breach of the standard of care or causation.

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.


Are we talking academically or about a specific order?

If we are talking about a specific order, in order to answer the question intelligently one would need to review the order.

If I were defending a medical malpractice case, I would consider the following, at least: Does the court of subject matter jurisdiction? Has personal jurisdiction over the defendant or defendants been properly acquired? Have all of the defendants been properly served with proper judicial process? Were the Florida pre-suit requirements properly completed? Has the statute of limitations expired? Did the attorney filing the lawsuit attach the appropriate certification of good faith? Was the doctor who supported the claim pre-suit properly certified? After suit was filed has the plaintiff made any false statements which would support a motion to dismiss for fraud on the court? Have there been any discovery violations which are serious enough to get the case dismissed? Is it possible to exclude any critical evidence the plaintiff might have through scientific attacks, so that a motion for summary judgment might be appropriate? I would take the deposition of the plaintiff's expert witnesses to see if the claim is supported and if not, support a motion for summary judgment with affidavits of my own experts.

There are many more attacks which might result in a case never being tried. However, to know what attack would or could be used depends specifically on the case involved.

Because of that, when an attorney is deciding whether or not to represent client in a case, especially a complicated and expensive case such as a medical malpractice case, the attorney has to be careful in the decision to accept the case.

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