Florida Medical Malpractice
Law Offices of Michael D. Stewart
In Florida, Doctors and other medical staff are held to a standard of care as to the services they provide. Failure to meet that standard of care can lead to injury, which can lead the patient to have a medical malpractice lawsuit, or in the case of death, can leave the surviving family with a wrongful death lawsuit for monetary damages and other remedial measures against the doctor or other health care provider.
The standard of care for doctors in Florida is the care that would be used by a reasonably prudent doctor in the same circumstances. Failure to meet this standard can lead to liability for medical malpractice.
In Florida, to prove a medical malpractice case it must be shown that 1) a doctor patient relationship existed, 2) the doctor was negligent (failed to meet the appropriate standard of care), 3) and that this negligence led to injury to the patient.
Proving that a doctor patient relationship existed is not always straightforward. When one is in a hospital it is possible that there are many treating and non-treating doctors, one or all of whom could be potentially liable for injury. Further, there could also be other personal who are more liable for injury, such as an anesthesiologist or nurse. Further, what if a doctor was merely an acquaintance and gave advice outside of the hospital or office context that led to injury. Would a doctor patient relationship have been created?
The next step is proving that the doctor was negligent. In Florida, an expert will be needed to testify as to the standard of care that was reasonably prudent and how this doctor deviated from the standard of care. The expert will most likely be another doctor in the same profession as the potentially negligent doctor. The factors in negligence are that the doctor had a duty to the patient to provide reasonable care, the doctor failed to provide such care, this failure led to injury to the patient, and the patient was thereby damaged.
It then needs to be proven that the negligence of the doctor was actually the cause (proximate cause) of the injury or death. For instance, in a situation where a patient dies of lung cancer, a failure to properly treat the cancer could be considered negligence, but if the patient was going to die that day anyway, it could not be said that the doctor’s negligence actually caused the wrongful death. The negligence must cause the injury.
Damages in a medical malpractice case must then be proved. Damages can include pain and suffering, medical bills, lost wages, disfigurement, and in the case of wrongful death, the family could have their own claims against the doctor, hospital and other medical workers.
Common claims for medical malpractice are failure to diagnose, failure to adequately treat, failure to warn the patient of known risks, or what is also referred to as informed consent.
In Florida, a lawsuit for medical malpractice needs to be commenced relatively quickly and there is a strict statute of limitations on malpractice lawsuits. The statute of limitations in Florida for a medical malpractice claim is two years from when the patient knew of the doctors negligence or when the patient should have know something was wrong. So, for example, in cases where a sponge was left inside a surgery patient, the patient might not learn about the doctor’s negligence until some time after the occurrence. The statute would begin to run once the patient learned that the sponge was inside them. However, in Florida, there is a generally hard rule that a medical malpractice claim cannot in most circumstances be brought after four years from the negligence. However, if the doctor or other health care provider concealed the negligence and prevented the patient from learning of it within the four year period, the statute is increased an additional two years. With children, however, there is a statue of repose whereby the child’s right to bring a medical malpractice claim cannot be cut off before the child’s eighth birthday.
Further, Florida requires that prior to bringing a lawsuit for medical malpractice, that a pre-suit investigation be conducted concerning the alleged malpractice:
766.106 Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.
(b) “Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c) “Insurer” includes the Joint Underwriting Association.
(2) PRESUIT NOTICE.—
(a) After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.
(b) Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, the provisions of s. 456.073 apply and, for a licensed facility, the provisions of part I of chapter 395 apply.
(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—
(a) No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure shall include one or more of the following:
1. Internal review by a duly qualified claims adjuster;
2. Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;
3. A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;
4. Any other similar procedure which fairly and promptly evaluates the pending claim.
Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant shall appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud.
(b) At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:
1. Rejecting the claim;
2. Making a settlement offer; or
3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.
(c) The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.
(d) Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:
1. The exact nature of the response under paragraph (b).
2. The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.
3. The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.
4. An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.
5. An estimation of the costs and attorney’s fees of proceeding through trial.
(4) SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
1(5) DISCOVERY AND ADMISSIBILITY.—A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).
(6) INFORMAL DISCOVERY.—
(a) Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.
1(b) Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows:
1. Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.
2. Documents or things.—Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204.
3. Physical and mental examinations.—A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4. Written questions.—Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions.
5. Unsworn statements of treating health care providers.—A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements.
(c) Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.
(d) Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served.
(7) SANCTIONS.—Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.
History.—s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233.
1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”
Note.—Former s. 768.57.
Law Offices of Michael D. Stewart
The Law Offices of Michael D. Stewart