Kurzban Kurzban Tetzeli & Pratt | Attorneys At Law

Revisiting a Controversial Ruling

On Behalf of | Aug 26, 2020 | Firm News |

At the age of 16, Monica was suffering from synovial sarcoma, a rare type of cancer that entered her bloodstream due to a delayed diagnosis. Doctors informed her parents that treatment that could have provided a 30 to 40 percent chance of remission was down to one percent.

That catastrophic reduction occurred because of the treating pediatrician seemingly ignoring a radiologist’s request for a biopsy. The oversight denied Monica the chance even to put up a fight against the deadly disease.

Limited Legal Options

The logical next step would be to hold the doctor legally responsible through a medical malpractice claim. Unlike most other jurisdictions nationwide, a plaintiff’s burden of proof in Florida has to go beyond a decreased chance of survival due to the responsible party’s conduct.

In Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984), the Florida Supreme Court held that that “in negligence actions, Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.”

The ruling established what is known as a “51 percent” standard. Today, decades after the verdict, it remains the subject of criticism, dismissed as an “all-or-nothing” approach that is, at best, arbitrary.

The Need to Remove Restrictions

Plaintiffs should have the fundamental right that provides them free access to courts to pursue legal remedies for losses and injuries. The burden should be shifted away from the plaintiff’s chance of recovery and placed on the defendant and their negligent acts.

Statistics should not determine the validity of a medical malpractice case. In any other legal action, specific and unique facts would be considered by jurors who would render a verdict. Medical malpractice claims deserve the same consideration.

In the end, plaintiffs in Florida are at risk of losing 100 percent of their chance to fight illness or injury caused by a medical professional’s negligence, not to mention the inability to recover compensation for those actions or inactions.



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