MAY/JUNE 2019 | TAMPA BAY MAGAZINE 39
LAARWT
Attorney Jack Gordon
MALPRACTICE
OR NOT?
By Jack Gordon
Sam is a 25-year-old man who is
experiencing leg pain. Sam goes
to see his physician, Dr. Gray. The
physician examines Sam and finds
a lump behind his knee. He tells Sam
that there is probably nothing to worry
about, but, in an abundance of caution,
Dr. Gray coordinates for a biopsy and
the sample is sent to pathology.
Unfortunately, the pathology report
sent to the doctor confirms that Sam
is suffering from a type of cancer.
The cancer is serious, but with proper
treatment, Sam will have 40 percent
chance of remission. Tragically, Dr. Gray
fails to inform Sam, so no treatment is
provided.
Within six months, the cancer has
invaded his bloodstream and Sam’s
chance of survival is now only 1 percent.
But Sam cannot hold Dr. Gray legally
responsible for medical malpractice here
in Florida.
A plaintiff in a medical malpractice
action in Florida must show more than
merely a decreased chance of survival.
The plaintiff must show that the injury
“more likely than not” resulted from the
medical mistake.
The “more likely than not” standard
is satisfied only when a plaintiff can
prove there was a 51 percent or greater
chance the injury or death would not
have occurred but for the actions, or lack
thereof, of the health-care provider. So,
if the patient has less than a 51 percent
chance of survival or treatability prior to
the physician’s error, that patient cannot
bring legal action against that doctor.
Medical malpractice laws tend to
favor physicians more than patients
and should be revised to protect the
consuming public. Patients must be
able to hold physicians and hospitals
responsible to make medical care safer
for everyone. 9
EDITOR’S NOTE: Jeffrey “Jack” Gordon,
a board certified civil trial lawyer in Tampa,
can be contacted at (813) 221-1366, or at
FightNegligence.com.