“More Likely Than Not” Your Doctor Can Avoid Paying Damages

There is a doctrine in the law of the State of Florida that frustrates justice and provides immunity to many medical providers. The doctrine requires that the damages awarded to a patient victim of medical malpractice are limited to only those “more likely than not” to have been caused by the misconduct. On the surface, this doctrine or rule (created in the Gooding Case) seems perfectly fair.

The doctrine or rule adopted by many states, however, is quite different. The other approach to the damages in a medical malpractice case is expressed in the wording of this jury instruction:

(LOSS OF THE VALUE OF A CHANCE)

Medical negligence is the cause of harm to a patient where:

1. the negligence increased the risk of harm to the patient, and 2. the increased risk was a substantial factor in bringing about the harm.

The plain fact is that most medical providers are treating sick patients. In Florida, under the Gooding rule, if a sick patient gets sicker because his doctor behaved badly the defense attorney gets to argue that the patient (or his survivors) cannot prove that he was “more likely than not” made worse. In many other states, the patient would be permitted to argue that the doctor’s misconduct increased his risk of getting worse. In other words, he lost the best chance he had of getting better because of the malpractice.

The Florida Rule of “more likely than not” was created by the Supreme Court of Florida in Gooding v. University Hosp. Bldg., Inc. In the opinion the Court stated its rationale for rejecting the idea of the loss of the chance of recovery or improvement:

“Relaxing the causation requirement might correct a perceived unfairness to some plaintiffs who could prove the possibility that the medical malpractice caused an injury but could not prove the probability of causation, but at the same time could create an injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result. No other professional malpractice defendant carries the burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury.”

I say that a doctor who eliminates the chance of a recovery through negligence should be held accountable for his actions.