Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Although Florida passed a law capping non-economic damages in malpractice cases, the Florida Supreme Court has held that the damage caps are unconstitutional under the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Florida instead awards damages under principles of several liability, based upon the percentage of each defendant's fault for the injury. However, if the defendants submit to voluntary binding arbitration to determine damages they are jointly and severally liable for the damages assessed through arbitration.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In Florida, evidence of collateral source payments is inadmissible at trial, but evidence of such payments may be introduced after the verdict in order to reduce the damages award to the amount actually paid.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Florida, a person claiming injury from medical malpractice must file a claim within two years from the date of injury or the date the injury is or reasonably should have been discovered, but no more than four years from the date of injury. If the plaintiff can establish that fraud, concealment of injury or intentional misrepresentation by the defendant prevented discovery within the four-year period, the limitations period is extended by an additional two years from the date of discovery, not to exceed seven years after the act or omission that gave rise to the injury.
For a minor injured by malpractice, if the statute of limitations would otherwise have run the minor may bring a claim up to the age of eight.
Additional rules affecting malpractice litigation in the State of Florida include:
Limits on Attorney Fees
Florida imposes restrictions on attorney fees, presuming that attorney fees are unreasonable if they exceed the limits. For cases that settle before the defendant files an answer or the appointment of an arbitrator, the limits are 33-1/3 percent of any recovery up to $1 million, an additional 30 percent of any recovery between $1 million and $2 million, plus 20 percent of any recovery in excess of $2 million. In cases after the filing of an answer, the appoinment of an arbitrator or entry of judgment, the limits are 40 percent of any recovery up to $1 million, an additional 30 percent of any recovery between $1 million and $2 million, plus 20 percent of any recovery in excess of $2 million. If all defendants admit liability and request a trial only on damages, the limits are 33-1/3 percent of any recovery up to $1 million, an additional 20 percent of any recovery between $1 million and $2 million, plus 15 percent of any recovery in excess of $2 million. Attorney fees may include an additional five percent of any recovery if any appellate proceeding is filed, or if post-judgment relief or action is required in order to recover the money payable under the judgment.
Alternative Dispute Resolution
In Florida, upon a motion by either party, the court may order that the malpractice claim be submitted to nonbiding arbitration. The arbitration panel reviews the evidence and makes determinations on the issues of liability, the amount of damages, and how liability should be apportioned between the parties. An arbitration panel may not award punitive damages. If all parties accept the decision of the arbitration panel, the decision is deemed a settlement of the case and the litigation is dismissed with prejudice. If the matter proceeds to trial the fact that there has been an arbitration proceeding, the nature and amount of any award, and other facts about the arbitration are inadmissible at trial, except that testimony given at the arbitration hearing may be admissible consistent with the rules of evidence and civil procedure.
Within 120 days after a malpractice lawsuit is filed, unless the parties stipulate to an extension or unless the parties have agreed to binding arbitration, the cause is to be submitted to mandatory mediation.
Following the completion of a presuit investigation that results in a finding of preliminary reasonable grounds for a medical negligence claim, the parties may opt to have damages determined by an arbitration panel.
Within twenty days after the determination of damages by the arbitration panel in the first arbitration proceeding, all defendants who have agreed to voluntary binding arbitration must submit any dispute amongst themselves regarding the apportionment of financial responsibility to a separate binding arbitration proceeding.
Certificate of Good Faith
When a malpractice claim is filed, the plaintiff's complaint or initial pleading must contain a certificate of counsel that, following reasonable investigation, counsel has a good faith belief that grounds exist for an action against each named defendant. Within this context, good faith may be shown to exist if the claimant or the claimant's attorney has received a written opinion from an expert qualified to testify in the case that there appears to be evidence of medical negligence.
Medical Expert Witness Restrictions
In order to testify as an expert witness in a medical malpractice case, Florida law requires that the proposed expert be a health care provider who holds an active and valid license, and has conducted a complete review of the pertinent medical records.
If the defendant against whom the expert's testimony will be offered is a specialist, the proposed epxert must specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered. The proposed expert must also have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis for the action to the active clinical practice of, or consulting with respect to, the same specialty; to instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or to 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 the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the five years immediately preceding the date of the occurrence that is the basis for the action to active clinical practice or consultation as a general practitioner; to the instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or to a clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.
If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis for the action to the active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered; to the instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or to a clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.
A licensed physician who otherwise qualifies as an expert witness and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff.
For a medical negligence action against a hospital, a health care facility, or medical facility, a proposed expert witness may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Florida has a general apology law that restricts the use of such statements in the event of accidental injury.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.