Florida Medical Malpractice Law - An Overview
By Aaron Larson
Important Notice: The following overview of Florida's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Florida's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Florida.
- What Is Medical Malpractice
- Limits on Malpractice Damages
- Collateral Source Rule
- Rules for Expert Witnesses
- Joint and Several Liability
- Statute of Limitations
- Limits on Attorney Fees
- Additional Rules
- Why Use A Malpractice Lawyer
Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.
Noneconomic damages are limited to $500,000.00 per claimaint in most cases, or $1 million in cases in which the plaintiff dies or is left in a persistent vegetative state. Total noneconomic damages may not exceed $1 million. Punitive damages are limited to the lesser of three times compensatory damages or $500,000.00. Punitive damages are not capped if there is intent to harm.
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Florida, there is a binding offset for payments from collateral sources, except for collateral sources for which there are subrogation rights.
Except where negligence would be obvious to a layman, expert testimony is required to establish liability in a malpractice case. A testifying expert must be from the same field of medicine as the defendant, or have been in practice for at least five years prior to the date the claim was filed.
Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment.
Under Florida law, the damage award to which a Plaintiff is entitled is reduced in proportion to the degree of the plaintiff's fault. For example, if a jury found that a plantiff was 20% responsible for his own injury, the damage award would be reduced by that 20%, and the plaintiff could recover 80% of the damages from the defendants. If one defendant were held 50% responsible for the injury, and another defendant 30% at fault, they would respectively be responsible to pay that percentage of the damages award.
Medical malpractice actions must be commenced within 2 years from the date of the act giving rise to injury, or within two years from the date the injury was or should have been detected, but no malpractice action may be commenced more than four years following the act giving rise to the injury. These limitations apply to minors aged eight or older. For injuries to a child under the age of eight resulting from medical malpractice, under Florida law the child must file suit by his or her eighth birthday or within the standard limitations period outlined above, whichever time period is greater.
Attorney fees are limited to 30% of the first $250,000 in damages, and 10% of any damages in excess of that amount.
A plaintiff must serve upon the defendant a notice of intent to initiate medical malpractice litigation, which includes a verified written medical expert opinion attesting that there are reasonable grounds to believe that each named defendant was negligent. If a defendant denies the existence of reasonable grounds for the plaintiff's claim, that defendant must file a corroborating verified written medical expert opinion.
Florida law requires informal discovery and investigation by the defendant's insurer before submssion of a malpractice claim to the courts.
A court may order non-binding arbitration.
If the parties do not agree to binding arbitration, there is mandatory mediation and a mandatory settlement conference before a case may proceed to trial.
Patients are entitled to see doctors’ and hospitals’ records of adverse medical incidents, including malpractice.
The state is prohibited from licensing doctors who have committed three or more incidents of malpractice which involve a finding of medical malpractice by a court, administrative agency, or binding arbitration.
Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.
Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.
Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.