Medical Malpractice Claims in Florida: A Comprehensive Guide

Jan 1, 2025 | Medical Malpractice, Birth Injuries

If you have concerns about medical malpractice, you should not ignore them. Medical mistakes can have life-altering (and, in some cases, life-threatening) consequences, and they are far more common than they should be.

Victims of medical malpractice have clear rights under Florida law. Parents whose children have suffered birth injuries and other family members who are struggling to cope with the financial and non-financial consequences of serious medical mistakes have clear legal rights as well. If you have a medical malpractice claim, you can (and should) take legal action, and your first step is to talk to a lawyer about filing a claim.

Understanding What Constitutes Medical Malpractice in Florida

This guide provides an overview of what patients and family members need to know about filing medical malpractice claims in Florida. We’ll begin by discussing what constitutes medical malpractice.

Medical Providers Must Meet the Applicable Standard of Care

While medical malpractice can take many forms (as we discuss in greater detail below), not every medical mistake constitutes medical malpractice. To be liable for malpractice, a healthcare provider’s mistake must represent a deviation from the applicable standard of care. The cause of action for medical malpractice is established in Section 766.102(1) of the Florida Statutes. This section of the law states:

“In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving . . . that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.”

As the law goes on to state, “[t]he 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 applicable standard of care can be different in different circumstances—and this is one reason (among many) why it is important to have an experienced medical malpractice lawyer on your side.

Of course, as a patient (or family member), it can be difficult to know whether a doctor or other healthcare provider is meeting his or her professional responsibilities. As a general rule, you expect to be able to trust your healthcare providers—not to have to second guess their decision-making. When you hire an experienced medical malpractice lawyer to represent you, your lawyer will be able to examine the circumstances surrounding your (or your loved one’s) care and determine whether it makes sense to move forward with filing a claim.

Common Types of Medical Malpractice in Florida

As we said above, medical malpractice can take many different forms. This is another reason not to ignore your concerns—and to speak with a lawyer before you make any decisions about whether to take legal action. Some of the most common forms of medical malpractice include:

  • Delayed diagnosis
  • Misdiagnosis
  • Failure to diagnose
  • Anesthesia errors
  • Medication errors
  • Mistakes during surgery
  • Mistakes during childbirth

According to the American Medical Association (AMA), approximately one in three clinicians face medical malpractice allegations at least once during their career. The AMA also reports that the following medical specialties have the highest rates of medical malpractice claims in the United States:

  • Anesthesiology
  • Cardiology
  • Emergency medicine
  • Gastroenterology
  • Primary care
  • Radiology
  • Surgery

Of course, while these are some of the most high-risk types of care for patients, these are by no means the only concerns when it comes to medical malpractice. Regardless of the type of care you or your loved one received (or sought), if you have concerns, you can—and should—talk to one of our lawyers about filing a claim.

5 Steps to Take if You Have Concerns About Medical Malpractice in Florida

As we’ve mentioned already, if you have concerns about medical malpractice, your first priority should be to speak with a medical malpractice attorney. But, this is not the only step you should take to protect your legal rights. With this in mind, if you think you may have a medical malpractice claim (or don’t know and want to find out), you should:

1. Prioritize Your (or Your Loved One’s) Medical Care

While trusting any healthcare provider when you have concerns about medical malpractice can be difficult, it is still important to prioritize your (or your loved one’s) medical care. You should find a doctor who is unaffiliated with your (or your loved one’s) previous provider, and you should not be clear about why you are seeking care somewhere else.

2. Collect Your (or Your Loved One’s) Medical Records

To file a medical malpractice claim, you will need your (or your loved one’s) medical records from before, during, and after the diagnosis or treatment (or lack thereof) at issue. While your lawyer will be able to obtain these records on your behalf if necessary, if you have access to them, it will be helpful for you to bring them with you to your free initial consultation.

3. Take Notes About Why You Have Concerns

It will also be helpful for you to take some notes. You should take some time to write down why you have concerns. Even in this type of situation, the details can get fuzzy quickly; so, if you can record the details while they are still fresh in your mind, this will help make sure you can provide your lawyer with as much information as possible.

4. Start Documenting Your Family’s Losses

In addition to collecting your (or your loved one’s) medical records and taking notes about your medical malpractice claim, you should also start documenting your family’s losses. This includes keeping track of your medical bills, any time you miss from work, and any other expenses you incur. It also includes keeping track of all of the non-financial impacts of your (or your loved one’s) substandard care. Patients and family members who have medical malpractice claims in Florida can seek just compensation for pain and suffering, emotional trauma, loss of consortium and companionship, and various other non-financial losses.

5.  Schedule a Free and Confidential Consultation

To ensure that you are making informed decisions about asserting your legal rights, you will need to speak with a medical malpractice lawyer—and you will want to do so as soon as possible. The first step is to schedule a free and confidential consultation. At Silva & Silva, we are more than happy to speak with you over the phone or in person, whichever is most comfortable for you.

5 Mistakes to Avoid if You Have Concerns About Medical Malpractice in Florida

Along with taking these steps (among others), you will also want to be careful to avoid several all-too-common mistakes. For example, if you think you may have a medical malpractice claim, you generally should not:

1. Return to Your Previous Care Provider

You should not return to your (or your loved one’s) previous care provider. In this scenario, a second chance is not warranted, and you need to put your (or your loved one’s) health first.

2. Talk to Your Previous Care Provider About Your Claim

You also should not talk to your (or your loved one’s) previous care provider about your concerns at this stage. Any discussions you have will not help your claim, and saying the wrong thing could potentially create unnecessary challenges.

3. Post About Your Concerns on Social Media

In this same vein, you should avoid posting about your concerns on social media. This can create unnecessary challenges as well. At this stage, you should only discuss your concerns with your lawyer.

4. Make Assumptions About What Happened or Who is Responsible

One of the worst mistakes you can make is to start making assumptions. When it comes to protecting your legal rights and seeking the financial compensation you will need for the future, it is critical to ensure that you are making informed decisions based on an experienced lawyer’s advice.

5. Wait to Seek Help

While Florida has a two-year statute of limitations for medical malpractice claims in most cases, it is important to take legal action as soon as possible. Unnecessary delays can also lead to unnecessary challenges, as it can potentially become harder to prove what happened the more time goes by.

Understanding Your Medical Malpractice Claim

Let’s say you have a medical malpractice claim in Florida. How do you move forward?

Under Florida law, medical malpractice claims are subject to specific rules and requirements that do not apply to other types of personal injury and wrongful death claims. For example, before you can file a lawsuit in court, you must first serve a “presuit notice of intent” on your (or your loved one’s) healthcare provider. Once you provide this written notice, the healthcare provider’s insurance company then has 90 days to conduct an investigation and make a determination of liability.

Regardless of whether the insurance company accepts liability, filing a successful claim will also require proof of how much you are entitled to recover. If the insurance company accepts liability (whether during this initial 90-day period or later), your lawyer will present this proof during settlement negotiations. If the insurance company rejects liability, your lawyer will need to present evidence of both liability and damages in court.

In either scenario, it will be critical to work closely with your lawyer throughout the process. While many successful medical malpractice claims settle, it is important to be prepared to go to court if necessary. If the insurance company makes a settlement offer, your lawyer will help you make an informed decision about whether to accept with your family’s long-term best interests in mind.

Medical Malpractice Claims vs. Dangerous Drug and Medical Device Claims

Before we close, we also want to touch briefly on claims involving dangerous drugs and medical devices. While many unnecessary complications are the result of medical malpractice, dangerous drugs and medical devices are to blame in some cases. If you or a loved one has been harmed by a dangerous drug or medical device, the manufacturer could be fully liable; and, in this scenario, your lawyer will need to file a products liability claim against the manufacturer on your behalf.

Speak with a Florida Medical Malpractice Lawyer at Silva & Silva for Free

If you need to know more about filing a claim for unnecessary medical complications in Florida, we strongly encourage you to get in touch. We represent patients and families statewide. To speak with an experienced Florida medical malpractice lawyer at Silva & Silva in confidence, give us a call at 305-445-0011 or tell us how we can reach you online today.