Medical malpractice is negligence by a healthcare provider that injures a patient. In Florida it is governed by chapter 766 of the Florida Statutes, which sets both what you have to prove and the steps you must take before a lawsuit can be filed. Not every bad outcome is medical malpractice, and the line between the two is the professional standard of care.
A Florida medical malpractice claim turns on four things: a duty of care, a breach of the professional standard of care, a causal link between that breach and your injury, and damages you can document. Florida also puts a two-year filing deadline and a presuit expert review in front of you before a lawsuit can be filed, so the first step is getting your records to a lawyer who handles chapter 766 cases.
Understanding Medical Malpractice
Medical malpractice occurs when a healthcare provider acts negligently and harms a patient. Negligence is the failure to exercise the care that a reasonable professional would have exercised under similar circumstances.
Elements Of Malpractice
In a medical malpractice claim, four elements must generally be proven. These include:
- Duty of Care: The healthcare provider owes you a duty of care. The existence of a doctor-patient relationship usually establishes this.
- Breach of Duty: The healthcare provider has failed to meet the expected standard of care. This means they didn't provide treatment or care that a reasonably competent and knowledgeable healthcare provider of the same profession and under similar circumstances would have provided.
- Causation: The breach of duty directly caused or substantially contributed to your injury, harm, or damages. This requires proof that your injuries would not have occurred if the healthcare provider had met the required standard of care.
- Damages: You have suffered quantifiable physical, emotional, or financial damage due to the healthcare provider's breach of duty.
Standard Of Care And Breach
The medical standard of care refers to the level of care and skill that a competent medical professional with similar training and experience would apply in the same situation. The standard of care may vary depending on the case's specifics, such as the patient's age, medical condition, and the practices of the medical community.
A healthcare provider breaches the standard of care if their actions (or omissions) are inconsistent with what a reasonable professional would have done, resulting in harm to the patient. To determine whether a breach has occurred, the following factors may be considered:
- The training, experience, and specialization of the provider
- The circumstances of the patient's treatment
- Recommendations and guidelines from professional organizations
- Opinions from experts in the same medical field
Not every unfavorable healthcare outcome is due to medical malpractice. Medical negligence only occurs when a healthcare provider's actions deviate from recognized standards of care, and this deviation causes harm to the patient.
Exploring The Validity Of A Claim
By evaluating the following factors and gathering the necessary documentation, you can better determine whether you have a medical malpractice claim and, if warranted, can confidently pursue legal action.
Determining Negligence
The most important factor in a medical malpractice action is the medical provider's negligence, whether a doctor, nurse, or health care facility. Negligence means that a medical professional fails to exercise the care expected of someone with similar training and experience.
Medical errors, failure to diagnose, failure to treat, and wrongful treatment can all be considered examples of negligence.
Gathering evidence of negligence to support a claim is important. This may include medical records, expert testimony from medical professionals, and other relevant documentation demonstrating the deviation from the expected standard of care.
Linking Injury To Negligence
Once negligence is established, the next step is to prove a direct link between the negligence and the harm or injury to the patient. This requires proving that the defective care resulted in specific harm or injury to the patient.
It's important to gather evidence, such as medical records, expert witness testimony, and other relevant documents demonstrating a clear connection between the medical provider's negligent actions and the harm caused to the patient.
Impact Of Comparative Fault
A patient's own conduct, such as ignoring discharge instructions or not returning for follow-up, can reduce a recovery. Florida calls this comparative fault, and medical negligence is the one area where the 2023 tort reform did not change the rule. Florida Statute 768.81(6) bars anyone found more than 50 percent at fault from recovering anything, but the same subsection says it "does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766." In a Florida medical malpractice case, damages are still reduced in proportion to the patient's share of fault, with no 50 percent cutoff.
Expect the defense to raise it, and expect it to be argued through the same records and expert testimony that carry the rest of the case. Under Florida Statute 766.102(1), the claimant's burden in a medical negligence action is the greater weight of the evidence, not clear and convincing evidence.
Medical Malpractice Claim Checklist
To assess the viability of a potential medical malpractice claim, you should gather and review the following documentation:
- Relevant medical records detailing the treatment or procedure in question and any follow-up treatments or consultations
- Expert opinions from qualified medical professionals in the relevant field claiming the alleged negligence or injury
- Documentation of damages suffered, such as expenses for additional treatment, lost income due to missed work, or records of physical or emotional trauma
Florida gives you two years to file a medical malpractice suit under Florida Statute 95.11(5)(c), and in no event more than four years from the date of the incident, whatever the discovery date. Gather these records early, because the presuit expert review has to happen inside that window.
The Legal Process
Taking legal action when faced with the unfortunate event of medical malpractice can be a daunting prospect. For anyone seeking justice and compensation, these are the key steps in this legal process.
Statute Of Limitations
In Florida a medical malpractice action must be filed within two years. Florida Statute 95.11(5)(c) runs that two years from the date the incident occurred, or from the date it was discovered or should have been discovered with the exercise of due diligence.
There is an outside limit on top of that. The same subsection bars any action brought more than four years after the incident regardless of when it was discovered, which is a statute of repose rather than a limitations period. Two exceptions matter. Where fraud, concealment, or intentional misrepresentation of fact prevented discovery of the injury, the period runs two years from discovery but never past seven years from the incident. And neither the four-year nor the seven-year cutoff bars a claim brought on behalf of a child on or before the child's eighth birthday. Mailing the presuit notice of intent under Florida Statute 766.106 tolls the limitations period for 90 days.
Filing a Lawsuit
After the 90-day presuit period ends, the case is filed in circuit court. The complaint names the defendants, usually the treating professional, the practice group, or the hospital, and states what each of them did. In Florida the presuit steps come first, so a complaint filed without the notice of intent and the corroborating expert opinion is open to dismissal.
Certificate And Affidavit Of Merit
Florida requires this before suit, not after. Under Florida Statute 766.203(2), a claimant must investigate and then serve a verified written medical expert opinion, from a medical expert as defined in Florida Statute 766.202(6), corroborating reasonable grounds to believe that a named provider was negligent and that the negligence caused injury. It goes out with the notice of intent to initiate litigation. Under Florida Statute 766.106(3)(a), no suit may be filed for 90 days after that notice is delivered, and the prospective defendant uses that window to investigate and respond.
The Discovery Phase
Once the lawsuit has been filed, the discovery phase begins. In this critical phase, the plaintiff and defendant exchange information and evidence relevant to the case. Examples of such information include:
- Medical records
- Witness testimonies
- Expert reports
During the discovery phase, your attorney gathers evidence to support your claim and anticipates the defenses that could be used against you.
After the discovery phase, the case may go to trial, where a judge or jury will evaluate the evidence and determine the outcome. However, it's worth noting that many medical malpractice lawsuits are settled before trial through negotiations between the attorneys for both parties.
Your Rights And Compensation
If you were the victim of medical malpractice, you may be entitled to compensation for your injuries and damages. The damages are broken down into a few distinct categories.
Economic Damages
Economic damages are quantifiable financial losses resulting from the malpractice, such as medical bills, lost income, and future medical expenses. Economic damages are much easier to make a case for as they are easier to document and prove.
Non-Economic Damages
Non-economic damages are more subjective, so they can be more difficult to quantify in a claim. These will typically include things like pain & suffering caused by the malpractice and emotional distress such as anxiety, fear, or depression.
Punitive Damages
Punitive damages are possible in Florida but gated. Under Florida Statute 768.72(1), you cannot even plead them until the court finds a reasonable evidentiary basis for recovery, and Florida Statute 768.73(1)(a) generally caps an award at three times compensatory damages or $500,000, whichever is greater. They target conduct that was intentional or grossly negligent, not an ordinary mistake.
In cases of wrongful death due to medical malpractice, the victim's family may seek compensation for loss of companionship, funeral expenses, and other related costs.
Damage Caps
Florida has no enforceable cap on noneconomic damages in a medical malpractice case. The caps written into Florida Statute 766.118 are still printed in the statute book, but the Florida Supreme Court held the wrongful death caps unconstitutional in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and the personal injury caps unconstitutional in North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017). Neither has been replaced. Treat any article claiming a recent Florida statute reinstated a cap with suspicion, because no such law exists.
Speak To A Lawyer About Your Medical Malpractice Claim
If you suspect that you’ve received poor medical treatment and are the victim of medical malpractice, you should contact the Weinstein Legal Team right away. We have a network of experienced medical malpractice attorneys who will fight on your behalf.
Contact us today at 888-626-1108 or click here to schedule a free case review with an experienced attorney now.
