But, while the prevalence of medical malpractice is well-known, providers deny responsibility with regularity, and malpractice insurance companies fight patients’ and families’ claims by all means available. So, even if there is no question you have a claim, you are still facing an uphill battle to recover the financial compensation you deserve.
What Do You Need to Know if You Suspect Medical Malpractice?
With this in mind, there is a lot you need to know if you suspect that you may have a medical malpractice claim in Florida. Here are 15 important facts for patients, parents, and grieving family members:
5 Important Facts about Florida’s Medical Malpractice Laws
1. Medical Malpractice Requires a Breach of the Prevailing Standard of Care
Not all mistakes in the medical setting rise to the level of medical malpractice. To pursue a claim for medical malpractice, you must be able to demonstrate that your (or your loved one’s) health care provider made a mistake that falls below the “prevailing professional standard of care.” Under Section 766.102 of the Florida Statutes:
“The prevailing professional standard of care for a given health care provider shall be that 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.”
This means that the prevailing standard of care is not the same in all circumstances. For example, the law generally gives more leeway to emergency room (ER) doctors (who often need to make split-second decisions with limited information under high-stress circumstances) than it does to surgeons who have scheduled appointments with their patients. With that said, medical malpractice can – and does – happen in all medical settings, and under no circumstances should you assume that a health care provider’s mistake was justified.
2. Medical Malpractice Requires Proof of Causation
Another key aspect of Florida’s medical malpractice law is that it requires proof of causation. If your doctor made a mistake that turned out to be inconsequential, then you don’t have a medical malpractice claim—even if the mistake fell below the prevailing standard of care.
Causation can take many different forms. For example, one of the most common forms of medical malpractice is misdiagnosis. If your doctor failed to diagnose your condition and your condition continued to worsen, then you likely have causation—had your doctor provided an accurate diagnosis, presumably you could have gotten the treatment you needed. Although, if you waited too long to seek a diagnosis and your condition was no longer treatable, then your doctor’s misdiagnosis may not be a causal factor.
In other cases, causation can be more straightforward. For example, suppose you went in for surgery and your doctor left a piece of gauze inside your body. Given the circumstances, there is virtually no question that your doctor is responsible for your condition.
3. Medical Malpractice Can Take Many Different Forms
Under Florida law, medical malpractice can take many different forms. Along with misdiagnoses and surgical errors, other common forms of medical malpractice include failure to treat, anesthesia errors, medication errors, failure to monitor, and specialist malpractice. The breadth of potential issues means it is possible to pursue medical malpractice claims in many cases, but it also means pinpointing the grounds for a malpractice claim can be challenging. This is among the many reasons why it is important to consult with an experienced medical malpractice attorney promptly.
4. The Florida Supreme Court has Ruled the State’s Damages Cap Unconstitutional
Florida has a medical malpractice damages cap on the books. However, the Florida Supreme Court has ruled that the state’s damages cap is unconstitutional. As a result, medical malpractice claimants in Florida can currently seek full compensation for all of the financial and non-financial costs of their health care provider’s negligence.
5. Florida has a Strict Statute of Limitations for Medical Malpractice Claims
Florida has a strict statute of limitations for medical malpractice claims. If you wait too long to file a claim, you will lose your legal rights.
The amount of time patients and families have to file medical malpractice claims in Florida depends on the specific circumstances involved. The general rule is that patients and families have two years from the date of discovery to initiate a lawsuit in court; and, at a maximum, up to four years from the date of the malpractice. However, the statute of limitations can be extended beyond four years in cases involving fraud or concealment. There are also special rules for cases involving minors.
5 Important Facts about Pursuing a Medical Malpractice Claim
6. Filing a Claim Requires Evidence of Liability
Proving that a health care provider committed medical malpractice requires evidence. Even if you or a loved one is a victim of malpractice, if you don’t have the evidence to prove it, you won’t be able to recover the financial compensation to which you are legally entitled.
Just like medical malpractice itself, evidence of medical malpractice can take many different forms. Some examples of evidence our Florida medical malpractice lawyers typically use to prove liability include:
- Medical records from before the incident of malpractice
- Medical records from the visit during which the malpractice occurred
- Bills and statements of benefits (SOBs)
- Medical records from the provider who diagnosed and treated your (or your loved one’s) condition post-malpractice
- A written report and oral testimony from an expert witness
7. Filing a Claim Requires Evidence of Loss
In addition to evidence of liability, filing a medical malpractice claim also requires evidence of loss. Under Florida law, patients and families who fall victim to malpractice can recover just compensation for their financial and non-financial losses. This includes medical expenses, loss of income, pain and suffering, emotional trauma, loss of companionship and consortium, and loss of enjoyment of life—among others. Some examples of evidence our Florida medical malpractice lawyers typically use to prove our clients’ losses include:
- Medical records, bills, and SOBs
- Employment records, account statements, tax records, and other financial documentation
- Expert reports and testimony
- Testimony from friends and loved ones
- A “pain journal” or other documentation of the daily effects of the malpractice
8. There are Some Costly Mistakes You Need to Avoid
When pursuing a medical malpractice claim in Florida, there are some costly mistakes you need to avoid. We discussed some of these mistakes in our recent article, What Should You Do if You Have Concerns about Medical Malpractice in Florida?
Medical malpractice cases are complicated; and, as a result, avoiding mistakes can be difficult. In many cases, patients and families will jeopardize their legal rights not realizing that they have done anything wrong. If you think you may have a medical malpractice claim, speaking with an attorney promptly is one of the best ways to make sure you do not inadvertently put your claim at risk.
9. Pursuing a Successful Malpractice Claim Requires Effort
Regardless of the circumstances involved, pursuing a successful malpractice claim requires effort—on the part of the patient (or family) and the patient’s (or family’s) attorney. While Florida medical malpractice attorneys can handle the legal aspects of their client’s claims, they need help from their clients to prove both liability and loss.
This is important for patients and families to understand before they decide to move forward. Building a successful medical malpractice claim is a collaborative process. If you don’t provide your attorney with the information he or she needs, your attorney won’t be able to fight for the financial compensation you and your loved ones deserve.
10. Pursuing a Successful Medical Malpractice Claim Takes Time
It is also important for patients and families to understand that pursuing a successful medical malpractice claim takes time. You won’t receive payment in a matter of days, and it might not even be a matter of weeks or months. While most successful claims settle somewhere in this timeframe, if your attorney needs to take your claim to court, it could be a year or longer before your claim gets resolved.
If you need financial help in the interim, there are options available, and your attorney can help you decide if one of these options is right for you.
5 Important Facts about Resolving a Medical Malpractice Claim
11. There is No Guarantee You Will Receive a Settlement
If an experienced Florida medical malpractice attorney takes your case, there is a good chance that you will have the opportunity to consider a settlement offer. However, there are no guarantees. There are no guarantees that you will receive a settlement offer; and, even if you receive a settlement offer, there is no guarantee that the offer will be fair.
Your attorney can fight for you, and your attorney can remind the insurance company of its obligation to handle your claim in good faith. But, ultimately, your attorney cannot make the insurance company settle. If you don’t receive a fair settlement offer, your only option will be to take your claim to court.
12. Once You Settle Your Medical Malpractice Claim, It’s Over
In some cases, medical malpractice insurance companies will try to tempt patients and families with early settlement offers. These offers are usually for far less than the total amount owed. When considering settlement offers, it is imperative to make informed decisions focused on your long-term needs—because once you settle your claim, it’s over.
13. You Might Struggle to Make Your Decision about Settlement
If the insurance company handles your case strategically, it will make a settlement offer that is right at the bottom of the range you should be willing to consider. This will leave you with a difficult decision: Should you accept, or should you keep fighting for more? At this point, you will want to rely on your attorney’s advice to make a decision in your best interests and in the best interests of your family.
14. If Your Claim Doesn’t Settle, You Will Need to Go to Court
As we mentioned above, if your claim doesn’t settle, you will need to take your claim to court. This is also a factor you should consider when evaluating settlement offers. Is it worth rejecting an offer and taking the risk of receiving nothing (since the outcome of the trial also is not guaranteed)? Or, is it time to settle your claim and move on?
15. If a Claim Goes to Court, the Losing Party Can File an Appeal
Finally, you should also consider the possibility of your case going to an appeal. After trial, both parties have the opportunity to file an appeal if they have grounds available. While this means that you might eventually be able to overcome an unfavorable verdict, it also means that the insurance company could challenge your award if you win just compensation at trial.
Speak with a Florida Medical Malpractice Lawyer in Confidence
Making informed decisions about pursuing a medical malpractice claim is not easy. If you would like help, we encourage you to contact us for a free, no-obligation consultation. To discuss your legal rights with an experienced Florida medical malpractice lawyer in confidence, please call 305-445-0011 or request an appointment online today.