Do I have a case of malpractice if her doctor missed the correct diagnosis?

Recently, my wife passed away. She was diagnosed by an orthopedic surgeon with 3 buldging discs which put pressure on nerves causing inflamation of the sacro-iliac joint, resulting in pain and swelling. After months of treatment and medications, she went to a pain specialist. This doctor immediately sent her for additional tests, which showed the swelling to be a cancerous tumor that was spreading rapidly. She died 6 weeks later.

Asked on February 22, 2013 under Malpractice Law, Florida


Catherine Blackburn / Blackburn Law Firm

Answered 7 years ago | Contributor

It is unlikely that you could pursue a malpractice case in Florida under these facts.  A lawyer would first have to prove that your wife would have survived if the correct diagnosis had been made.  While I do not know the exact type of cancer, it is unlikely that months would have made the difference between life and death with a rapidly growing tumor.  The lawyer would also have to prove that a reasonably competent surgeon would have made the correct diagnosis.  This is debatable.  Finally, damages are capped in Florida at $1 million for wrongful death.  You would have to pay attorney's fees (at least 40%), litigation costs (at least $150,000 - $200,000 in my estimation), and reimburse all your wife's insurance payments.  This would leave you with a very small recovery.  For these reasons, I doubt that any malpractice lawyer would be willing to prosecute a case.

Having said that, malpractice lawyers do not charge for consultations.  I suggest you call several to see what they say.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.