Medical Malpractice

A patient / doctor relationship existed.

In order to file a medical malpractice lawsuit, you must be able to prove that you had a patient-doctor relationship with the physician. Doctors can only be sued if they were hired by the patient to provide medical care.

The doctor behaved in a negligent manner.

To sue for medical negligence, you must be able to show that your doctor’s actions or omissions caused harm that a competent doctor could have prevented. This will require a medical expert to testify to how doctors should behave in similar situations, and how your physician’s actions deviated from that standard.

Statute of Limitations

In Florida, you must file a medical malpractice lawsuit within a specific timeframe known as the statute of limitations. For most cases, this is two years from the date of the injury or from the date you reasonably discovered the injury.

However, there is an additional limit called the statute of repose, which bars any medical malpractice claim filed more than four years after the date of the alleged malpractice, regardless of when the injury was discovered.

There are exceptions to these time limits, such as in cases where fraud or concealment by the medical provider prevented the patient from discovering the malpractice. In these cases, the statute of limitations may be extended.

Additionally, claims involving minors may have different timelines. Because these deadlines are strict, it’s crucial to consult a qualified attorney as soon as you suspect malpractice.

Pre-Suit Requirements

Florida law mandates a pre-suit process before you can officially file a medical malpractice lawsuit. This includes:

• Notice of Intent: Before filing a lawsuit, the plaintiff must send a formal notice of intent to the healthcare provider, informing them of the intent to pursue a medical malpractice claim. This notice must be sent at least 90 days before filing the lawsuit.
• Pre-Suit Investigation: During this 90-day period, both sides are required to conduct a pre-suit investigation to determine the validity of the claim. The plaintiff must obtain an affidavit from a qualified medical expert confirming that medical negligence occurred.
• Mediation or Arbitration: In some cases, the parties may agree to mediation or arbitration during the pre-suit phase to attempt to resolve the issue without going to court.

Medical Malpractice Caps in Florida

Although Florida has had medical malpractice caps in the past, the Florida Supreme Court ruled in 2017 that caps on non-economic damages (such as pain and suffering) in medical malpractice cases are unconstitutional.

This means that there is no limit on the amount of non-economic damages a plaintiff can recover. However, there may still be caps on punitive damages, which are intended to punish particularly egregious conduct.

Comparative Negligence

Florida follows a comparative negligence rule in medical malpractice cases. This means that if the patient is found to be partially responsible for their own injuries, their compensation may be reduced by the percentage of fault attributed to them.

For example, if a patient is found to be 20% at fault for not following post-operative care instructions, their total damages may be reduced by 20%.

Statutory Protection for Healthcare Providers

Florida law also provides certain protections for healthcare providers, such as:

• Good Samaritan Law: Healthcare professionals who provide emergency medical care outside of a hospital setting (such as at the scene of an accident) are generally protected from liability unless their actions are grossly negligent.
• Emergency Room Care: Healthcare providers working in emergency rooms are held to a different standard of care in medical malpractice cases, known as reckless disregard. This is a higher threshold to meet compared to standard medical negligence, making it more difficult to bring claims for injuries that occurred during emergency treatment.

Sovereign Immunity for Public Healthcare Providers

If a medical professional works for a public hospital or government-operated healthcare facility, they may be protected by sovereign immunity. This limits the amount of compensation a patient can recover from government employees to $200,000 per person or $300,000 per incident, unless the Florida Legislature grants a higher award.

Expert Testimony Requirements

Florida law requires that in a medical malpractice case, the plaintiff must present expert testimony to establish that the healthcare provider’s actions were below the accepted standard of care. This expert must be a medical professional with relevant experience in the same field as the defendant. The testimony is used to show that the healthcare provider's negligence directly caused the patient’s injury or death.