This guide will give you a complete understanding of Florida medical malpractice laws. You will learn about:
- The elements of a medical malpractice case
- The different types of cases that frequently happen
- What needs to be done before you can file a lawsuit
- How long you have to file a lawsuit
You will also gain an understanding of the different types of medical malpractice cases. Most importantly, after reading this guide, it will be clear that medical malpractice law can be very complicated. No one should ever pursue a claim against a healthcare provider in Florida without an experienced medical malpractice attorney.
What Is Medical Malpractice?
Medical malpractice occurs when a health care provider does something wrong or fails to do something they should have done and that act or failure to act causes a patient injury. This applies to any healthcare provider including hospitals, patient care staff at hospitals, doctors, and nurses. It also applies whether the person has to live with an ongoing injury or there is a wrongful death.
Elements of a Florida Medical Malpractice Case
What you need to prove in a medical malpractice case may be different in different states. In Florida, you have to prove the healthcare provider negligently caused the injury.
This sounds simple. But in reality, it is very difficult to do. To succeed, you have to prove:
- The healthcare provider breached the standard of care
- That the breach caused injury
- The amount of damages caused by the breach
This guide breaks down these elements below in a way that most people can understand.
Breach of the Standard of Care
Over time, certain standards or “duty of care” for what is acceptable have been created for most healthcare activities and medical procedures. These standards are called the standard of care. When a healthcare provider does not follow the standards that were created for their profession, their actions are called a breach of the standard of care.
Sometimes the standard of care requires a healthcare provider to do a particular thing. For example, it may require a doctor to diagnose a condition based on a set of symptoms. Other times the standard of care may require a healthcare provider not to do something. For example, during surgery, it may require a doctor not to cut a blood vessel.
The next step after proving the healthcare provider breached the standard of care is to prove the breach itself caused an injury. This is often the hardest thing to do for several reasons.
The first reason is that many negligent acts simply do not result in causing injury. For example, a radiologist may negligently fail to recognize a spot on someone’s lung is cancer, but a pulmonologist could testify that the delay of properly diagnosing the cancer would not have changed the outcome. In this scenario, the radiologist’s breach of the standard of care did not cause a liable injury.
The second reason proving the negligent act caused the injury is often the hardest thing to do in a medical malpractice case is that the poor outcome may have occurred even if there was no breach of the standard of care. For example, if someone dies during surgery because of a negligent two-minute delay in treating a heart stoppage, the expert opinion might agree that there was only a 25% chance of survival even if everything was done perfectly. Once again, it would be difficult to prove the breach of the standard of care actually caused the death.
The final reason that proving a breach in the standard of care caused injury is the fact that medicine is not an exact science. Sometimes, doctors do everything right and a bad result still happens. If the person’s injury is a known complication, then it can be impossible to determine if the outcome was simply something that can happen even when everything is done right or was caused by negligence.
Many breaches of the standard of care lead to minor inconveniences or temporary pain and suffering. While technically these situations would still be medical malpractice, the time and effort to pursue the claim often would not be worth the effort. As a result, malpractice attorneys will not usually pursue this type of case.
On the other hand, when permanent injuries, catastrophic injuries, or even death are involved, there is no question a claim should be pursued.
Types of medical malpractice damages available include:
- Past medical expenses
- Future medical expenses
- Lost wages
- Loss of earning capacity
- Pain and suffering
- Mental anguish
- Loss of enjoyment of life
Types of Florida Medical Malpractice
There are many kinds of medical malpractice, but most cases fall into several broad-based categories. Those types of cases are:
- Doctor errors
- Plastic surgery errors
- Gynecologist and obstetrician (OBGYN) malpractice
- Birth injury malpractice
- Emergency room negligence
- Surgical errors
- Failing to obtain or disregarding a patient’s history
- Failing to diagnose a medical condition
- Medication mistakes (also called medication errors)
- Delayed or incorrect diagnosis
- Anesthesia errors
- Failing to diagnose cancer
- Hospital errors
- Ignoring or misreading laboratory results
- Lack of informed consent
How to Prove a Medical Malpractice Case in Florida
In Florida, only the medical community can define what is or is not medical malpractice. As a result, Florida Statutes §766.102 requires you to have a medical expert with similar qualifications as the health care provider you want to sue who is willing to testify under oath that there was malpractice before moving forward with a case.
This means you have to have an expert willing to say that both the standard of care was breached and that the breach itself caused the injury. Sometimes, the same expert can testify to both issues. This is possible when the type of injury is within the specialty of the medical provider accused of malpractice.
Other times, you will need one expert to say the standard of care was breached and another expert to say that the breach caused the injury. Using at least two experts will be necessary when the damage caused is outside the specialty of the expert used to testify on the standard of care.
Medical Malpractice Presuit Requirements
Florida has some of the most healthcare-friendly medical malpractice laws in the country. These laws are designed to slow the case down, ensure that only legitimate cases are pursued, and protect healthcare providers as much as possible. These laws are part of Chapter 766 of the Florida Statutes. Your lawyer must know and understand these laws to be successful in pursuing a medical malpractice case.
As part of the presuit requirements, you must find a medical expert with similar qualifications as the healthcare provider you believe is negligent. You must then provide that medical expert with all the medical records pertinent to your care. After reviewing all the medical records, the medical expert must be willing to sign an affidavit swearing under oath that malpractice has occurred.
The next step of the Florida presuit process is to send a notice of intent to pursue a malpractice case to the healthcare provider you believe committed medical negligence via registered mail with return receipt requested. You must also include with the notice of intent, the affidavit of your medical expert along with all the medical records your expert reviewed.
The healthcare provider then has 90 days to decide whether to settle your case, request arbitration, or deny your claim. During this 90 day period, both sides exchange written information and may even take unsworn statements.
Medical Malpractice Rarely Settles During the Presuit Period
Unfortunately, the presuit period doesn’t usually lead to a quick settlement. Instead, the process adds additional expenses and delays the resolution of the case.
Cases rarely settle during this time period because it is fairly easy for a defendant doctor to get an expert willing to say that either there is no evidence of negligence or that any negligence did not cause the alleged injury.
Defendants would rather hire an expert to deny the claim than settle early because the presuit period really does not give them enough information to assess all factors of a case. They want to put all witnesses of the events along with all experts involved under oath to assess their credibility before deciding whether to settle.
The only way to do this is to force the injured person to file a lawsuit.
Statute of Limitations
A lawsuit must be filed with the court in every case within a certain amount of time after the event or the claim will be forever barred. This time frame is called the statute of limitations. The statute of limitations for medical malpractice is different in each state in the country. In Florida, the statute of limitations is governed by Florida Statutes §95.11.
According to the law, a lawsuit must be filed within two years of when you knew or should have known that malpractice occurred, but no more than two years from the event itself. This is true even if the person dies and a wrongful death lawsuit is filed.
In addition, if fraud occurs, the statute of limitations can be extended up to seven years. The statute of limitations is also tolled during the 90 day presuit period.
File Your Medical Malpractice Claim Sooner Rather Than Later
Because of all these things, assessing when the statute of limitations has run in any particular case can be very complicated. For this reason, the safest thing to do is file a lawsuit within two years of the event.
Unfortunately, this is not always possible. But a qualified malpractice attorney will be able to figure it out.
Do You Need a Florida Medical Malpractice Lawyer?
Medical malpractice is one of the areas of law that is so complicated that you should rarely try and pursue the case without a highly qualified medical malpractice lawyer. A good malpractice lawyer can hire the right experts to determine if the standard of care was breached and the breach caused the injury.
At Distasio Law Firm, we have the knowledge and ability to make these determinations. We also have the skill and financial resources to hold healthcare providers responsible for medical malpractice.