Difference Between Medical and Attorney Malpractice
by Warren R. Trazenfeld
Both doctors and lawyers make mistakes when they deal with Florida’s citizens. However, there is a dramatic difference when the person who suffers from these mistakes sues for malpractice. Doctors are required to be financially responsible for their mistakes, lawyers are not.
Unlike doctors, lawyers in the state of Florida have no obligation to maintain malpractice insurance or provide any disclosure to clients that they do not have insurance. Although no exact data is available, it is estimated that approximately forty percent of attorneys do not carry malpractice insurance.
There are numerous documented cases in which consumers have suffered disastrous consequences due to the errors of their attorney. These errors include missing deadlines, unfamiliarity with the law, conflict of interest and failing to obtain client consent. Clients who have suffered damages at the hands of their lawyers have no practical recourse whatsoever when the attorney has no malpractice insurance.
Doctors are required to be financially accountable for their errors. The Florida legislature has passed laws requiring doctors to satisfy financial responsibility requirements. Essentially, a doctor who does not have hospital staff privileges must provide an escrow account, insurance or a letter of credit of not less than $100,000.00 per claim with a minimum annual aggregate of not less than $300,000.00. A doctor who has hospital privileges must establish an escrow account, insurance or a letter of credit in the amount of $250,000.00 per claim and a minimum annual aggregate of not less than $750,000.00. There are two exceptions to these requirements.
The first is primarily for part-time physicians. In order to avoid the financial responsibility requirements, they must post a sign in their reception area or provide a written statement to all persons who receive medical services. The sign or statement must state the following: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time physicians who meet state requirements are exempt from the financial responsibility law. YOUR DOCTOR MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law.”
Doctors who agree to satisfy judgments rendered against them may also avoid the financial responsibility laws if they provide a notice substantially similar to the notice for those who are part-time physicians.
There are two ways to assist consumers in dealing with the discrepancy between holding doctors and attorneys responsible for their errors.
First, the Florida Bar, which controls lawyers in Florida, can require every Florida lawyer to maintain malpractice insurance or, at a minimum, disclose to their clients that they do not carry insurance. It is important to note that the Florida Bar oversees lawyers conduct, not the legislature. Therefore, since the Florida Bar is made up of the very lawyers who would be required to have malpractice insurance, it is extremely unlikely that malpractice insurance will ever be required.
The second solution requires the consumer of legal services to be proactive and ask the attorney if he or she has malpractice insurance. If the attorney does not have malpractice insurance, the potential client is entitled to know why. If the lawyer does have insurance, the questioning should not stop there. It is important to know the amount of the coverage. If the attorney has limited coverage, the potential client would need to consider this factor
Just like no potential bride wants to discuss a prenuptial agreement before marrying the wealthy husband, a client does not want to discuss the potential errors of a lawyer at the time the lawyer is being hired. However, the failure of the consumer of legal services to have knowledge about the lawyers accountability for an error can be terribly harmful.
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