My name is Brad Winston, and since 1988 I have been representing individuals against doctors, hospitals, and their insurance companies. I have seen firsthand how heartless and money-driven insurance companies can be. Today I handle only large malpractice and injury cases. If you want a divorce or a will or have a traffic ticket, I can’t help you.
This guide is a short synopsis of the book I’ve written of the same title. Its free to residents of Florida by going to my website at www.WinstonLaw.com, and listed on Amazon.com for sale to all others.
If you don't live in Florida, call us anyway. We can usually provide you with the names of other attorneys who may be able to help you with your situation. We do not charge for this service.
Di s c l a i m e r - This is Not Legal Advice
I know the arguments the insurance company will make—and so should you—even before you start your claim. When you were injured, you entered a war zone. The insurance industry has spent hundreds of millions of dollars to inflame the public against you and me. If I accept your case, we will be in this together. I am not allowed, however, to give legal advice in this book; I can offer suggestions and identify traps, but please do not construe anything in this book to be legal advice about your case until you have agreed to hire me and I have agreed, in writing, to accept your case.
What Must be Proven to Win a Case?
Your case must be proven by expert testimony. That is, other doctors in the same specialty as the negligent doctor must be willing to say that the conduct of the defendant fell below accepted standards. Simply making a mistake or getting a bad result is not enough—we must prove that it was a really major error that directly led to your injury.
Florida’s Artificial Limit on Recovery in Malpractice Cases
The State of Florida imposes an additional limit to recovery for medical malpractice cases. No matter how seriously injured you are, the maximum recovery you can obtain, as of the time this book is written, is $500,000 for pain and suffering unless there’s a “permanent vegetative state" or death involved. Then the cap is $1,000,000. If the claim is against an “emergency services or care" provider— then the cap is only $150,000 per claimant and $300,000 for all claimants! This is true even if your medical expenses alone exceeded that amount. The cap applies per patient, not per doctor. It protects only health care professionals. This means that if you were to seriously injure a doctor with your car, he could recover millions from you, but if he injures you with his scalpel, your recovery against him is artificially “capped." Does that sound fair?
The Reasons Most MalpracticeVictims Receive Nothing
Despite popular opinion about the “skyrocketing" increase in malpractice suits and wards, the number of suits has not increased since 1996, and in most cases, plaintiffs receive nothing.
Patients don’t know they are victims of medical malpractice.
Studies show that roughly 2.9 to 3.7 percent of admitted hospital patients suffer some sort of preventable injury as a result of medical management (i.e., not from the original medical condition). -
No autopsy was ever performed.
In a situation in which we claim that the malpractice caused death, we must prove that the carelessness of the health care provider directly resulted in the patient’s death. It is almost impossible to prove that the death occurred because of the malpractice without an autopsy. -
Even though the doctor committed malpractice, the disease or illness likely would have resulted in death anyway.
Sometimes cancer or other deadly illnesses may go undiagnosed for months or even years. A late diagnosis of cancer does not always mean, however, that a doctor is responsible for a patient’s death. An experienced malpractice attorney can help determine whether the cancer or other serious illness should have been detected “in time" to save the patient.
A physician’s poor bedside manner is not malpractice.
In the vast majority of cases, even egregiously poor bedside manner cannot be considered in determining whether a physician committed malpractice in providing treatment. -
The patient suffered no significant damages.
While we understand that every case is important to the patient involved, the legal system is not set up to handle “small" medical malpractice cases. We decline hundreds of cases a year in which it appears that the doctor was careless but that the resulting injury was not significant.
The injury suffered was not necessarily caused by the physician’s or hospital’s mismanagement.
Because it is often very difficult to prove that medical mismanagement was the reason the patient suffered the injury that he or she did, the insurance companies have many standard defenses including, for example,
The injury was an unpreventable result of the initial condition/injury. (“If the tumor had been diagnosed six months earlier, it would not have made a difference.")
The injury was due to the patient’s noncompliance with medical advice. (“I told him to return to the office if his symptoms did not clear up, but he didn’t.")
The risk of the patient’s particular injury was an acceptable one. (“He got infected in surgery, but 2 percent of all patients undergoing that surgery get an infection.")
Some other party was responsible for causing the injury.
The injury was caused by a previous illness or disease. Medical malpractice plaintiffs must show a very clear connection between the defendant’s misconduct and the claimed injury.
The plaintiff has not retained an experienced attorney.
Medical malpractice litigation is a world unto its own. It has its own special rules and laws. There are very few lawyers in Florida who specialize in medical malpractice claims. The malpractice insurance companies and the doctors’ lawyers know who the “real" plaintiffs’ (patients’) malpractice lawyers are.
The statute of limitations has expired. If the statute of limitations has expired, you can’t file a case. The Florida statute of limitations for medical malpractice and all wrongful death is two years.“Two years from when?" Florida has something called “tolling" rules, so your actual time to sue may be longer than two years from the specific date of the negligence but not more than four years from then. The tolling rules can be tricky and should not be left to novices or inexperienced attorneys.
Jurors have been misled by the insurance industry. The insurance industry has spent millions funding junk “research" to suggest that there is a widespread problem with medical malpractice lawsuits. Jurors who hear these messages often award lower verdicts than they would have a decade ago.
The plaintiff is unable to hire good, qualified experts You cannot win most medical malpractice cases without one or more very qualified medical experts, and they can be hard to find. It is becoming increasingly difficult to find doctors who are willing to stand up for what is right. It takes time and money to find the best experts for your case. This is one area in which the insurance companies have a tremendous advantage.
The patient contributed to the injury. In Florida, any negligence or carelessness on the part of the patient that contributed to the injury will reduce the claim. Sound fair? It’s not fair, but it is the law. It is laws like this that continue to make medical malpractice cases tough to win.
What Cases Do We Not Accept?
We have found that the only way to provide personal service is to decline those cases that do not meet our strict acceptance criteria. Our practice focuses on the most serious cases of medical malpractice. Therefore, we generally do not accept the following types of cases:
Cases with no clear, objective evidence of significant injury that was directly caused by the health care provider’s malpractice. The last thing you want to do is to “win" your case only to have the attorneys’ fees and expenses be larger than your personal recovery.
Cases with significant pre-existing injury in the same body part. If you have had three back surgeries in the past and are now claiming that your most recent surgeon is the cause of your chronic back pain, the chances of a jury awarding you a substantial amount of money in your claim is about zero.
Cases in which the statute of limitations will soon run out. We like to have at least four to six months to adequately investigate and evaluate your claim. Because of the complexity of these cases and the extensive review process, we require this lead time. We routinely decline “last minute" calls.
If your case has already been filed, we will not represent you. We like to handle legal matters our way. If you or another attorney has already filed a case, that’s fine, but all we can do is wish you “good luck."
Well, Are There Any Cases Left?
Yes, there are, and that’s just the point. Just look at our results on our web page www.WinstonLaw.com. We concentrate our efforts on increasing the value of good cases—not filing and chasing frivolous ones.
What Can You Do From Here?
The most important thing that you can do as a potential medical malpractice plaintiff is to collect and maintain all of your hospital and doctor records. Any attorney who ends up representing you will need to have as extensive a record as possible. Keep a journal of events and note the date, time, and circumstances of your developing situation.
Obviously, by reading this, you have begun your search for experienced malpractice counsel. Remember—in Florida, the statute of limitations could expire in as little as two years. The legal process does take time—you should weigh your options for counsel carefully, but you should begin your investigation immediately.
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