Medical malpractice is a term that encompasses all manner of mistakes made by medical practitioners, ranging across varying degrees of seriousness and commonality. It is defined as an act or omission by a healthcare professional or facility during a patient’s treatment that differs from the generally accepted standards of care and which results in personal injury (or death) for the patient. It is typically deemed to be a result of negligence on the part of the associated medical practitioner(s). Per the Florida Department of Health, over 1700 medical malpractice lawsuits were filed in Florida in 2021. It has also been reported that out of all 50 states, Florida had the third-highest medical malpractice claims filed between 2012 and 2022. Here are some of the more common forms of medical malpractice:
Failure to Diagnose -or- Misdiagnosis
Failure to Follow-up
Childbirth Injuries or Mishaps
If you feel you have been a victim of medical malpractice in Florida, you may want to contact a qualified attorney to help you determine your next best steps. Before moving forward, learning some general information about Florida's medical malpractice law would be good.
Pre-Suit Notice of Intent
In Florida, someone wishing to file a medical malpractice lawsuit must first notify the accused healthcare professional(s) of their intent to sue. They would do this by serving them with a certified letter of intent, which must include an affidavit of merit from a qualified medical practitioner attesting to the fact that the plaintiff’s complaint is valid. In addition to the affidavit of merit, the notice of intent to prosecute should also include other pre-suit investigation and discovery materials, such as names and contact information for any other medical professionals the claimant was under the care of leading up to the alleged malpractice, relevant medical records, and permission to access possibly protected medical information.
After the Notice of Intent has been submitted, there is a 90-day waiting period. During the 90-day period, the statute of limitations is temporarily put on hold. The plaintiff will not be permitted to file their lawsuit until the 90-day waiting period is complete. This requirement is intended to prevent frivolous lawsuits. It is also meant to give both parties an opportunity to try to settle before going to trial.
Medical malpractice lawsuits in Florida are treated as personal injury claims. As with any other personal injury lawsuit, some standards must be met to prove that what happened was in fact malpractice, and that the defendant was the one responsible for the injury. If there was a formal doctor-patient relationship, if the doctor was negligent when caring for that patient, and if any injury to the patient occurred as a result of that negligence, then chances are good that you have a bonafide case of medical malpractice on your hands. Proving that the following four conditions were met will be the key to determining liability in a medical malpractice lawsuit:
Duty of Care: The defendant was legally responsible for acting with the same level of caution that any reasonable person in similar circumstances would use in order to avert causing foreseeable harm to others. For example, in the case of a wet floor, a grocery store would need to put out a sign alerting people of the potential for slipping.
Breach of Standard of Care: The defendant knowingly breached a legal duty or failed to act with the same level of care that others in the same circumstances would use, thus failing to keep the plaintiff from being harmed. Failure to put out a wet floor sign in the above example would constitute a breach of duty.
Causation: The defendant’s negligence was responsible for causing the injury.
Damages: The plaintiff has incurred one or more legitimate types of damage due to the defendant’s negligence.
In addition to the above, you may be required to prove that your injuries weren’t expected or foreseeable. For example, after any surgery, certain amounts of pain, suffering, and recovery time are expected. While uncomfortable and inconvenient, these would not be examples of malpractice, as they would have been anticipated prior to the surgery.
Three Strikes Rule
Passed in 2004, the Florida Three Strikes Rule states that if a medical practitioner is found to have three or more incidents of medical malpractice on record, and those incidents have been proven by clear evidence, that practitioner will lose their license and be barred from practicing medicine in Florida going forward. The “strikes” referred to in this rule (incidents of medical malpractice) may have been handed down by one of the following:
Legally binding arbitration
Ruling in a civil suit
An administrative agency
This rule is intended to prevent negligent and dangerous healthcare providers from practicing medicine. It has been acknowledged, however, that proving actual malpractice is far more difficult than proving mere negligence. Unfortunately, many feel that the three-strikes rule has been ineffective in Florida.
Recent Tort Reform in Florida
In March of 2023, new “Civil Remedies” legislation was passed, which brought significant tort reform to the state. The new legislation affects Florida’s statute of limitations and comparative negligence system. It also makes medical bills admissible during trials in the hopes of providing more uniform standards for juries to calculate medical damages owed in personal injury and wrongful death cases. The changes to the statute of limitations and comparative negligence do not seem likely to have much effect on Florida medical malpractice lawsuits. The medical bills, however, may affect how damages are awarded in these cases going forward. As these changes are still very new, the overall impact they will have on medical malpractice cases remains to be seen. Challenges to the new law are expected.
Florida Medical Malpractice Liability Insurance Requirements
According to the Insurance Information Institute, medical malpractice insurance is a specialized version of professional liability insurance that offers financial coverage for healthcare professionals and facilities in the event that they are ever accused of negligence or errors that lead to personal injury, harm, or death. It covers things like attorney fees, court costs, settlements, and punitive damages. It does not cover liability stemming from criminal behavior, sexual abuse, or unethical alteration of medical records.
In Florida, medical practitioners are expected to meet one of the following requirements when it comes to medical malpractice insurance:
Secure professional liability insurance from an authorized insurer for a minimum amount of $100,000 per claim, and meet a minimum annual aggregate of at least $300,000
Maintain an escrow account that contains enough cash or assets available for deposit that can cover the above-specified per-claim amounts
Sustain a letter of credit for a minimum amount of $100,000 per claim, and meet a minimum annual aggregate of at least $300,000
Doctors who wish to have hospital staff privileges are expected to have at least $250,000 in malpractice insurance, with a minimum annual aggregate of at least $750,000
There exists a loophole in Florida statute, which allows medical practitioners not to carry insurance as long as they post a sign on the wall of their offices informing patients that they have no insurance.
How Much Can Someone Sue for Medical Malpractice in Florida?
Presently there are no caps in Florida for medical malpractice damages. This has always been true for economic damages, such as compensation for loss of income (past and future), medical bills, or any other measurable expense related to the malpractice.
In the recent past, there were caps for noneconomic damages such as pain and suffering, anxiety, trauma, mental anguish, loss of companionship, and other seemingly subjective concerns. Those caps were set at $500,000 if the defendant was a medical practitioner, up to $1 million in extreme cases. For “non-practitioner” defendants, the caps for noneconomic damages ranged between $750,000 and $1.5 million. In 2017 the noneconomic caps were deemed unconstitutional by Florida’s highest appellate court. Florida medical malpractice lawsuits have no caps for economic or noneconomic damages.
What Is the Statute of Limitations in Florida for Medical Malpractice?
The typical statute of limitations for filing a lawsuit in Florida is two years. In other words, victims of medical malpractice will need to file their claims within two years of the date the malpractice occurred. An exception may be made if the victim was not immediately aware of their injuries/illness related to the malpractice. If an exception is made, the person filing the lawsuit will have no more than four years to file. The only time an extension past four years might occur would be when fraud or concealment was involved, in which case the plaintiff would have up to seven years from when the malpractice took place. For minors, the statute of limitations would not apply if the lawsuit began on or before their eighth birthday.
Legal Resources for Medical Malpractice Victims in Florida
If you have experienced medical malpractice and are seeking to file a claim, the first best step will be to contact a qualified medical malpractice attorney. You can search for outstanding lawyers in your metro right here. The right attorney will be your best resource throughout the upcoming, possibly arduous legal process. If you need clarification about the best practices for seeking legal representation, check out this comprehensive guide to hiring a medical malpractice attorney.
Below are some other legal resources that you may find helpful in the aftermath of a medical malpractice experience.
Filing a Complaint
Outside of your lawsuit, you may also be in a position to file a complaint about a Florida healthcare professional or facility. You can do so through this portal. Per their website, “Florida Health Care Complaint Portal allows consumers to file a complaint with the appropriate state agency.” Information about the enforcement of complaints can be found here.
Find Free Online legal Advice
The American Bar Association Free Legal Answers is a virtual legal advice clinic that provides an online version of the walk-in clinic model. Users may request brief advice and counsel about a specific civil legal issue from a volunteer lawyer by posting their civil legal questions to their state’s website. Lawyers will then follow up with basic legal advice and information without the expectation of long-term representation. This is an excellent resource for people seeking advice and information about non-criminal legal matters who cannot afford a lawyer.
You can contact the ABA through the ABA Service Center Hotline at (800) 285-2221 or email them at Service@americanbar.org, Monday - Friday, 9:00 AM - 6:00 PM ET.
Online Legal Dictionaries
Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. The entries found here are collaboratively written and edited by legal experts and scholars. This resource is intended for use by a wide range of people, from students to lawyers to people with no legal knowledge.
For web accessibility help, they can be emailed at firstname.lastname@example.org
Their mailing address is:
Legal Information Institute
Cornell Law School
477 Myron Taylor Hall
Ithaca, NY 14853
The Free Dictionary by Farlex is another free online legal dictionary. As stated on their website, the primary source of TheFreeDictionary's legal dictionary is West's Encyclopedia of American Law, Edition 2, which contains more than 4,000 entries detailing terms, concepts, events, movements, cases, and individuals significant to United States law. The legal dictionary also incorporates The People's Law Dictionary, by trusted authorities Gerald and Kathleen Hill. They also have apps available in the App Store and Google Play.
Disability and Temporary Disability Benefits
Depending on a number of factors, such as the nature and severity of your injury, your age, your financial status, and whether or not you are able to work after the medical malpractice incident, you may be eligible for government-funded disability benefits that can help with finances while you await results of your malpractice lawsuit.
If you meet the following requirements, you may qualify for SSDI benefits:
You cannot work due to a medical condition expected to last at least a year or result in death.
Your disability is not partial or short-term.
You meet the Social Security Administration’s definition of disability.
You are younger than your full retirement age.
For SSI benefits, the following requirements must be met:
Are age 65 and older, or blind, or have a disability.
Have limited income (wages, pensions, etc.).
Have limited resources (the things you own).
Are U.S. citizens, nationals of the U.S., and some noncitizens.
Reside in one of the 50 states, the District of Columbia, or the Northern Mariana Islands. It does not include Puerto Rico, Guam, or the United States Virgin Islands. Exception: The children of military parent(s) assigned to permanent duty outside the U.S. and certain students temporarily abroad may receive SSI payments outside the U.S.
Are under age 18 and have physical or mental condition(s) that very seriously limits their daily activities for a period of 12 months or more or may be expected to result in death, and
Live in a household with limited income (benefits based on need) or resources.
To determine which benefits you may qualify for, you can reach the program at 1-800-772-1213 or go to https://ssabest.benefits.gov/benefit-finder/.
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