Florida Medical Malpractice Laws

The trust that a patient puts in their chosen health care provider is of the greatest importance. Patients allow their health care providers to see their medical history, learn about their current and ongoing physical ailments, prescribe medications and perform procedures that often require their life to be put in the hands of their physician. This trust is given due to the standard of care that every health care provider agrees to meet and is severed when that standard of care is not met and an injury is incurred. After an injury is caused by a health care provider, it can be difficult to know what steps need to be taken in order to seek a legal remedy.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in Florida has created finite period of time in which you are permitted to bring a claim. Once that period of time lapses, the chances of being adequately compensated for your injury diminish.

In addition, the law in Florida has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Florida; however, the best course of action to take if you are considering doing so it so consult with an experienced medical malpractice attorney licensed in Florida.

Suing for Medical Malpractice in Florida

If you have been injured as the result of a medical procedure, diagnosis, prescribed medication or some other form of medical negligence, you are permitted to bring a medical malpractice lawsuit against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Florida places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Florida allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned to you by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, those damages will be capped depending upon the type of damages awarded.

How long do I have to file a medical malpractice case in Florida?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are within the proper timeframe. The law in Florida mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in Florida created the discovery rule. The discovery rule freezes the two-year time limit and only begins to run once you either discover, or should have discovered through reasonable diligence, the injury that was caused by the medical malpractice. However, the time period to discover your injury is limited to four years.

Another exception to the statute of limitations exists if the injured party is a minor. If the person who sustained an injury due to medical malpractice was a minor, they may file a lawsuit at any time before their eighth birthday. [2]

In Florida Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a claim against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Florida, you may bring a medical malpractice claim against any health care provider that you allege was negligent and feel that their negligence caused your injury. When it comes to medical malpractice in Florida, you must prove that the health care provider’s actions represented a breach of the prevailing professional standard of care for that health care provider. In Florida, the prevailing professional standard of care for a given health care provider is the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. [3]

The law in Florida considers a health care provider to be licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, or hospitals or ambulatory surgical centers. [4]

What if I am partially to blame? Can I Still Recover Money for Florida Medical Malpractice?

Florida, along with 12 other states (Alaska, Arizona, California, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. [5]

Under the doctrine of pure comparative fault any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if you went to see a doctor about pain in your foot. During the evaluation the doctor asks you if you drink alcohol and you lie and say that you do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. You later take the medication while drinking alcohol and suffer severe health consequences. If you were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to your injury, it is likely that a court would find you at least partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allow for only a partial apportionment of fault. Usually the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Florida?

If your medical malpractice claim was successful, it is likely that a court will award you a sum of money known as damages. The law in Florida has established different types of damage awards that you may receive:

Economic Damages are meant to compensate you for the financial losses that would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80% of wage loss and loss of earning capacity. [6]

For example, economic damages help to repay the money you lost as a result of your injury, such as medical expenses, wages lost due to an inability to work, physical therapy costs, loss of future earnings, etc.

Non-economic Damages are damages that compensate you for nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses. [7]

Punitive Damages are not meant to compensate you for your injury. Instead, Florida awards punitive damages with the intention of punishing the defendant and attempting to deter future similar behavior. To obtain a punitive damage award, you must prove by clear and convincing evidence that the defendant is personally guilty of intentional misconduct or gross negligence. [8]

The law in Florida differs from many other states in that it places different damage caps for different medical malpractice defendants. For example, the law limits the amount of damages that may be awarded for a lawsuit brought against a medical practitioner ($500,000 up to $1,000,000 for non-economic damages) than against a non-practitioner corporate health care defendant ($750,000 up to $1,500,000). [9]

Punitive damages are capped at three times the amount of the compensatory damage award or $500,000, whichever is greater. [10]

Expert witness reporting and testimony

An expert witness is very important to your medical malpractice case for a two reasons. First, an expert witness will be able to provide testimony to the court which will go towards proving that there was a breach of the standard of care owed to you by a health care provider and that the breach was the proximate cause of your injury. Second, the law in Florida requires the opinion of a medical expert witness to be given in order for your case to ever reach trial.

In Florida you are required to file a pre-suit notice prior to commencing a medical malpractice lawsuit. [11] The pre-suit notice is a document that includes an affidavit from a medical professional, or expert, that states that your claim of medical malpractice has merit. The document also gives notice to each prospective defendant that a lawsuit is forthcoming and includes a list of all known health care providers you have seen for the injury you sustained as a result of the negligence that you are alleging and copies of all of the medical records that were used by the medical expert when they determined that your case has merit. [12]

In Florida, any person that you would like to testify on your behalf in an expert capacity must be a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:

• If the defendant is a specialist, the expert must specialize in the same specialty as the defendant and have devoted professional time during the 3 years immediately preceding the date of the alleged negligence that gave rise to your injury to the active clinical practice of, or consulting with respect to, the same specialty; instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or a clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.
• If you are bringing a medical malpractice lawsuit against a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the alleged negligence that gave rise to your injury to the active clinical practice or consultation as a general practitioner; the instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or a clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine. [13]

Are some Parties Immune from Medical Negligence Cases?

The law in Florida allows for a medical malpractice lawsuit to be filed against a physician, nurse, chiropractor or any other healthcare provider whose negligence caused your injury. However, there are nuances as to who can be held liable for your injury.

While the state of Florida does have a sovereign immunity statute in place which limits lawsuits against the government by not allowing a lawsuit against a government municipality without its consent, the immunity has been waived when the lawsuit involves personal injury. [14]

This means that if your injury was caused by physicians employed by the government, Florida’s waiver of sovereign immunity allows you to recover damages from the state government.

However, the state government may not be sued to the extent that an individual may be sued. For example, damages in a medical malpractice lawsuit against the state government are limited to $200,000 per plaintiff or $300,000 total for a claim involving multiple plaintiffs. [15] These damage caps also apply to independent contractors who are providing their medical services to the community.

Settling Medical Malpractice Cases in Florida

The law in Florida does not require mandatory arbitration as a form of alternative dispute resolution but does encourage its use.

If you offer to arbitrate and the named defendants refuse to accept your offer and you are ultimately successful at trial, you will be entitled to receive pre-judgment interest and up to 25% of the award in attorney’s fees. [16]

If it is the defendant that offers arbitration as a means to resolve the dispute and you refuse, your potential recovery is limited to economic damages and no more than $350,000 in non-economic damages. [17]

Arbitration can be advantageous in that it is less formal than trial litigation and is often more streamlined in terms of procedures and rules of evidence. The process usually involves three arbitrators; one selected by each side and a neutral arbitrator that is agreed to by both parties.

If your case is not heard in a binding arbitration proceeding, you and all named defendants will be required to attend a mediation session in an effort to increase the potential of an amicable resolution to the dispute. [18] If a settlement still is not reached, you must then attend a settlement conference at least three weeks prior to your trial date.

Litigating Medical Negligence Cases in Florida

Beginning a lawsuit centered around a claim of medical malpractice is different than beginning most other civil lawsuits in that you must first fulfill a pre-suit Notice requirement prior to moving forward with litigation. The pre-suit notice is a document that includes an affidavit from a medical professional, or expert, that states that your claim of medical malpractice has merit. The document also gives notice to each prospective defendant that a lawsuit is forthcoming and includes a list of all known health care providers you have seen for the injury you sustained as a result of the negligence that you are alleging and copies of all of the medical records that were used by the medical expert when they determined that your case has merit. [19]

In addition to making all named parties aware of the impending litigation, the pre-suit notice initiates a settlement procedure that lasts up to 90 days. During the 90 days after the notice has been mailed, the statute of limitations is frozen and you may not file the lawsuit. During that time span, all named defendants are required to conduct a review with the purpose of determining their liability with the goal of a potential settlement. However, if the defendant decides not to settle at a time earlier than 90 days, then you have the longer of 60 days or the remainder of the statute of limitations to file your lawsuit. [20] If the defendant believes that your case lacks merit, they are required to submit the opinion of a medical expert corroborating that statement. [21]

A claim for medical malpractice in Florida officially begins with the filing of a complaint. The complaint must specifically describe the malpractice that you claim to have occurred as well as ask the court for relief.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court

In Florida, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. In Florida, you have the option of filing your lawsuit either in the county where the malpractice occurred or where one or more of the defendants live. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

• Your name
• The names of all of the defendants
• The address of all named defendants
• The specific facts giving rise to your claim
• A general request for relief from the court

Once the complaint is filed with the appropriate court, it must then be personally served upon the defendant(s) by the sheriff. [22] Once the defendant(s) is served, they have twenty (20) days to file an answer at the same court. [23]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a process that is designed to allow both sides to disclose information to each other in order to prevent unnecessary surprises at trial. Essentially, discovery includes any item that can help bolster the legal argument of either side and is essential to preparing for trial.

The discovery process can include:

• Interrogatories
• Depositions
• Production of documents
• Requests for admission
• Physical and mental examinations [24]

Interrogatories are written questions posed to the other side that request answers which will be used to establish the facts that will be presented once the case goes to trial. Interrogatories may also reveal each person the other side expects to call as a witness at trial.

A deposition is a fact finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. Depositions should be taken as soon as possible in order to avoid statute of limitations issues.

Production of documents is a process where each side is permitted to request documents that may be used at trial.

Requests for admission are statements posed by one side to the other for the purpose of having the other side admit or deny.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. However, Florida’s pre-suit notice requirement may take care of this possibility in some situations.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, some cases do settle prior to going to trial. In fact, settlement is often encouraged by the legal system, so much so that if the parties have not agreed to binding arbitration, they must attend a mandatory mediation session, within 120 days of the lawsuit being filed. If a settlement is not able to be reached during the mediation, the parties must then attend a settlement conference at least three weeks before trial. [25]

A settlement conference is a meeting where all of the involved parties get together in one location for the purposes of consulting with a neutral third party and exploring the prospect of settling the dispute.

During the settlement conference, each side will stay in private, separate, rooms. The neutral third party will then meet with each side and continue to go back-and-forth until either a settlement is reached or it is determined that the case will not settle.

If the parties are unable to come to a settlement agreement during mediation, trial is likely the next step in the litigation process.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. Either the plaintiff or the defendant may request a jury trial in a medical malpractice case. If either party makes the request, the case will be heard before a panel of six jurors. [26]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can ask the judge not to allow that person to sit on the jury. Once each side finishes announcing the parties they wish to have removed, the six (6) member jury is impaneled.

In Florida, a person is considered to be qualified to be a juror if they are:

• A citizen of the United States
• Are at least 18 years old
• Able to read, write and speak English
• Reside in Florida and in the county where the trial is being conducted [27]

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of your injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. An appeal is permitted as of right when a final judgment has been entered at the trial court level. [28]

An appeal is usually based upon the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within thirty (30) days of the order being issued. [29]

How to find the best Florida Medical Malpractice Lawyer for your case

Medical malpractice litigation is complicated, messy and sometimes confrontational. If you or a loved one has had the unfortunate experience of being injured as a result of the negligence of a health care provider, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring competent, diligent and experienced legal representation can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. It is not fair that you not only have to physically suffer for the negligence of another let alone be left with out-of-pocket expenses that you would not otherwise have incurred had the negligence not taken place. A strong legal representative can help obtain monetary relief from the court that will help compensate you for your injuries.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table. Some attorneys and firms may be stronger in some areas than others. Determine what qualities are important to you and go from there. Be careful not to choose an attorney or law firm solely because they promise to obtain a high monetary award for you. There is no way that an attorney can forecast with a high degree of certainty what type of damage award will come your way after the litigation process is completed. While the numbers may sound nice, it is best to do your due diligence and hire counsel that meets your criteria.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last what type of fee you will be expected to pay. It is possible that the potential attorney or law firm will want to handle your case on a contingency basis. This means that you will not pay an hourly fee to your counsel. Instead, the attorney will take a percentage of your overall damage award when the case concludes.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Some notable medical malpractice law decisions from Florida

These cases represent awards to plaintiffs in medical malpractice cases in Florida. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Navarro v. Austin

The plaintiff, Allan Navarro, was admitted to the Emergency Room due to symptoms that included nausea, headache, dizziness and double vision. The plaintiff told a nurse that he had a family history of strokes, but he was diagnosed with sinusitis and discharged from the hospital. The plaintiff returned to the hospital the next day with the more serious symptoms and ended up needing surgery to relieve the swelling in his brain.

After the surgery, the plaintiff remained in a coma for three months and is now confined to a wheelchair and at risk of suffocating every time he eats.

The plaintiff brought a medical malpractice lawsuit against the emergency room physician, Michael P. Austin, as well as two groups that provide Emergency Room service based upon the claim that the Emergency Room doctors at Tampa’s University Community Hospital misdiagnosed his stroke symptoms. At trial, it was determined that the person who performed the plaintiff’s physical exam during his first visit to the Emergency Room was an unlicensed physician’s assistant. The defendant’s counsel originally told jurors during opening statements that the evidence would show that Navarro received a reasonable standard of care. However, on the witness stand it was admitted that if an unlicensed staff member was the first to examine the plaintiff and that the defendant’s limited re-examination of him fell below an acceptable standard.

The jury sided with the plaintiff and awarded $217 million in damages which included $100.1 million in punitive damages and $116.7 million in compensatory damages. The award was deemed permissible since the lawsuit was filed before Florida put damage caps in place.

Shoaf v. Geiling

Raven Shoaf suffers from a severe case of cerebral palsy as a result of a botched delivery. The girl’s mother, Sandra Shoaf, was admitted to the hospital to give birth to Raven but the process lasted for over three days.

During the three days, the defendant, Dr. Michael Geiling, attempted to speed up the birth in a number of ways. First, he used a suction device. Next he instructed two nurses to press on Shoaf’s stomach in order to execute a “fundal pressure.” This caused Shoaf’s tissues to tear and the internal bleeding to occur. The internal bleeding interrupted blood flow to Raven and left her brain without oxygen.

When Raven was finally born, she was unconscious and had to be resuscitated. She would later suffer from seizures.

A lawsuit was filed against Florida Hospital Altamonte; Adventist Health System, the hospital’s parent company; Mid-Florida OB-GYN Specialists Inc; Dr. Michael Geiling; and Dr. Juan Ravelo, a colleague of Geiling’s. All defendant’s settled with the plaintiff out of court with the exception of Dr. Geling.

The jury ultimately found the defendant liable and ordered him to pay $24 million to Raven’s family.

Footnotes

[1] Fla. Stat. § 95.11(4)(a)

[2] Fla. Stat. § 95.11(4)(b)

[3] Fla. Stat. § 766.102

[4] Fla. Stat. § 766.101(2)(b)

[5] Fla. Stat. § 768.81(2)

[6] Fla. Stat. § 766.202(3)

[7] Fla. Stat. § 766.202(8)

[8] Fla. Stat. § 768.72(2)

[9] Fla. Stat. § 766.118(2)

[10] Fla. Stat. § 768.73(1)(a)

[11] Fla. Stat. § 766.106(2)

[12] Fla. Stat. § 766.1065

[13] Fla. Stat. § 766.102

[14] Fla. Stat. § 768.28

[15] Fla. Stat. § 768.28(5)

[16] Fla. Stat. § 766.209

[17] Fla. Stat. § 766.209

[18] Fla. Stat. § 766.108

[19] Fla. Stat. § 766.1065

[20] Fla. Stat. § 766.106

[21] Fla. Stat. § 766.203(3)

[22] Fla. Stat. § 48.021(1)

[23] Fla. R. CP 1.140(1)

[24] Fla. R. CP 1.280(a)

[25] Fla. Stat. § 766.108

[26] Fla. Stat. § 69.071

[27] Fla. Stat. § 40.01

[28] Fla. R. App. P. 9.040

[29] Fla. R. App. P. 9.100