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The “51 Percent Chance Rule” in Florida Medical Malpractice Cases

Tragically, medical malpractice injures countless patients in Florida and across the country every year. If you’ve been affected by medical malpractice, do not delay in reaching out to our Miami medical malpractice advocates. With wide-ranging experience in this realm of law, we know how to handle even the most complex malpractice claims.

Florida law does not recognize the “loss of chance” doctrine as a theory of recovery for patients in medical malpractice lawsuits. This doctrine is typically used when a doctor fails to make a diagnosis or delays a diagnosis. The negligence involves the doctor’s failure to diagnose or treat a patient’s condition in a timely manner, which causes the plaintiff a loss of chance to survive or have a more optimal outcome. In other words, the “loss of chance” doctrine is a cause of action allowing a patient to seek damages based on the reduced chances that the patient will recover. Consider the following example – a patient dies sooner than he or she would have from a malignant tumor whose diagnosis was negligently missed by a doctor. In this case, the patient would have likely died anyway but the cause of action is for the fact that the patient died sooner than he or she would have if a timely diagnosis had been made and immediate treatment had begun.

The Florida Supreme Court has held that the plaintiff bears the burden of proof in Florida medical malpractice cases and must convince the jury that his or her injury is “more likely than not” the result of defendant’s negligence. This standard is satisfied when the plaintiff can demonstrate that there was a 51 percent or higher chance that the harm would not have taken place ‘but for’ the defendant’s actions or lack thereof. As such, if a patient has under a 51 percent chance of survival or treatability prior to the medical professional’s negligence, that patient does not have a cause of action in Florida. Florida is part of a minority of states that requires the plaintiff to show that the injury was actually caused by the medical professional.

To win a medical malpractice lawsuit in Florida, the plaintiff must establish the following: the medical professional owed the patient a duty of care; the medical professional breached the duty of care owed to the patient; and the medical professional’s breach was a direct and proximate cause of the patient’s damages. The duty of care refers to every medical professional’s obligation to follow the appropriate standard of care, which is the degree of care that an ordinarily prudent medical professional practicing in the same area of medicine would have used in the same situation.

If you have been injured due to a medical professional’s negligence, we can likely help you recover compensation. At the Law Offices of Robert Dixon, our seasoned and reputable Miami medical malpractice attorneys know how devastating a medical injury can be, which is why we will aggressively advocate for your rights under the law. To learn more, please call us today at 1-877-499-HURT (4878) or contact us online.