Medical Malpractice – Is There a Different Standard of Care for Poor Patients
By William T. Abel, Esq.
Florida Law Re Medical Malpractice
Florida Statute strictly governs medical malpractice claims. The Florida Legislature has imposed many restrictions on such claims and has also created many hurdles for claimants to overcome. Some of these include narrowly defining who can serve as an expert witness, shrinking the statute of limitations from four years for a general negligence case to two years for medical malpractice claims, and placing a cap on the amount of damages claimants can receive for pain and suffering.
Despite these obstacles, the legal standard for determining whether medical malpractice occurred has remained constant for many years. Florida Statute requires that the claimant prove that a medical provider has deviated from the standard of care, which has been defined as that level of care, skill and treatment that is recognized as acceptable and appropriate by reasonably prudent, similar healthcare providers under similar circumstances. Although the standard of care should be uniform for all patients, a question arises as to whether poor patients receive medical treatment that is below the standard of care.
Negligent Doctors and Medical Malpractice
A majority of medical malpractice can be attributed to the same pool of negligent doctors. Statistics indicate that, on average, just 6 percent of doctors are responsible for nearly 60 percent of all malpractice payments. Needless to say, these types of doctors are not likely to be employed at prominent medical practices or hospitals. This is not only because having such a doctor would put a blemish upon the practice, but also because of the significant malpractice insurance rates that would have to be paid. Because of this, such doctors likely end up in practices or groups where malpractice insurance is not required or where immunity exists from negligence, such as a governmental clinics or hospitals. They also are pushed into solo practices where they structure their practice to their liking without the oversight of insurance carriers and other risk professionals. Typically people in lower socio-economic groups receive medical treatment through public and private medical clinics staffed by such doctors.
Substandard Care for Poor Patients
It is not just the fact that poor people are more likely to receive substandard medical treatment from bad doctors, even good doctors tend to provide substandard medical treatment to poor people as well. In a 2012 article published in Clinical Orthopaedics and Related Research Journal determined that physicians have an unconscious desire to avoid treating poor patients because of fear over non-payment. Additionally, these physicians also tend avoid treating poor patients because of the cultural, socio-economic and ethnic differences that exist. These unconscious biases can result less competent medical care even from good doctors.
The assertion that poor people receive substandard medical treatment is borne out by research. In 1991, the New England Journal of Medicine published an article that addressed the relationship between poverty and malpractice claims. It noted that the adverse events that were caused by negligence were highest among the poor.
The Institute of Medicine estimates that 98,000 patients die each year as a result of preventable medical errors, and hundreds of thousands more suffer non-fatal injuries. Despite these staggering numbers, medical malpractice lawsuits are uncommon, constituting only three percent of the civil tort caseload. Lawsuits brought by the poor for medical malpractice is even lower. A study of 51 New York hospitals showed that poor and uninsured patients are significantly less likely to sue for malpractice.
Although the poor are more likely to receive inadequate care that result in poor outcomes, the reasons that they are less likely to sue vary. First, poor people may not recognize that the bad outcome was the result of a medical error. They may not have the educational background or familiarity with the health care system to be able to comprehend that their injuries are the result of malpractice. Second, the poor are typically disenfranchised and reluctant to engage in a system that they do not believe works to their benefit. Third, given the fact that medical negligence claims are pursued on a contingency basis, poor people may not have sufficient economic damages for lawyers to invest in their case. Specifically, many states limit noneconomic damages (pain and suffering) and the poor typically have little in the way of economic damages (such as past lost wages or diminished ability to earn money) to establish economic damages that juries are permitted to award.
Standard of Care and What is the Solution
Based upon the foregoing, it is clear that there likely exists a deviation of the standard of care as it applies to poor people. Although the poor are more likely to receive medical care that results in a poor outcome, they are less likely to sue in order to prove that the standard of care has been breached. The only relevant standard of care is the standard of care that can be enforced. Because the poor do not enforce their right to medical care that meets the standard of care, the standard of care does not exist for them. A right not protected is a right that does not exist. The solution is to ensure that the poor receive the same standard of care as everyone else, and that can only be done when the poor advocate for their right to medical treatment that meets the standard of care. As a result, enabling the poor greater access to civil litigators will ensure that the standard of care means the same thing to all people as intended by Florida Statute.
Contact McLaughlin & Stern Today
If you think that you or your loved one has suffered as a result of medical malpractice or medical neglect, call McLaughlin & Stern today.
The lawyers at McLaughlin & Stern have the experience and resources needed to investigate and litigate all types of medical claims in the State of Florida. Please call us at 561.659.4020 to learn more about your legal rights. Please visit our website www.mclaughlinstern.com and follow us on Facebook and LinkedIn for more information.
Bill Abel is board certified as a specialist in civil trial law by The Florida Bar and is also rated “AV” by Martindale Hubbell. An “AV” rating distinguishes Bill as having very high general ethical standards and legal ability as evaluated by his peers. Bill limits his practice to representing individuals and families who have suffered serious personal injury or wrongful death.