According to Florida law, a victim of negligence has the legal right to sue for compensation for both economic and non-economic damages. Economic damages comprise financial losses that occurred because of the injury. Non-economic damages are non-financial losses that occurred because of the injury. Non-economic damages are more subjective.
What Constitutes Medical Malpractice?
There are many kinds of medical malpractice. However, just because a doctor or nurse makes a mistake does not mean they are liable for medical malpractice. Rather, you must be able to establish and prove that there was a breach in the standard of care.
Common examples of medical malpractice include but are not limited to:
- Doctor error
- Birth injury malpractice
- Emergency room negligence
- Surgical error
- Failing to obtain, or disregarding, a patient’s history
- Failing to diagnose a medical condition
- Medication error
- Delayed or incorrect diagnosis
- Anesthesia error
- Ignoring or misreading laboratory results
- Lack of informed consent
Elements of a Florida Medical Malpractice Case
A successful medical malpractice lawsuit is quite difficult in Florida. To succeed, you must prove the following elements:
- The healthcare provider breached the standard of care
- The breach caused injury
- The amount of damages caused by the breach
Breach of the Standard of Care
To establish that a breach occurred, Florida law requires that you find a medical expert practicing in the same field as the healthcare provider who committed the alleged malpractice and obtain an affidavit from the doctor.
After proving the healthcare provider has breached the standard of care, the next step is to prove that the breach is a proximate cause of the injury. Proximate cause generally results in what is called a "but for" test, meaning the injuries would not have occurred “but for,” or without, the doctor's negligence. This is difficult because while there may have been negligence, it does not necessarily mean it was the cause of the injury.
For example, a radiologist could negligently fail to recognize a cancerous spot on someone's lung, but a pulmonologist could testify that the delay in diagnosing cancer would not have changed the outcome. Here, the radiologist may have breached the standard of care, but did not cause the injury or progression of the injury.
Who Can Serve as an Expert Witness?
Medical malpractice cases rely heavily on expert witness testimony concerning the breach of the professional standard of care and for clarification on how the standard of care was breached. Therefore, determining who qualifies as a medical expert is essential.
Florida law provides that to qualify as an expert witness, the individual must be a healthcare provider who has a valid license and conducts a thorough review of the relevant medical records. The law further provides that if the defendant is a specialist, the expert witness must practice in the same specialty and have been engaged in clinical practice, consulting clinical research, or instruction in an accredited education or clinical research program in the same specialty during the three years immediately preceding the alleged act of medical negligence.
As mentioned above, medical malpractice damages are broken into two categories – economic and non-economic.
Economic damages include objective financial damages such as:
- Past medical expenses
- Future medical expenses
- Lost wages
- Loss of earning capacity
Non-economic damages are subjective and include:
- Pain and suffering
- Mental anguish
- Loss of capacity for the enjoyment of life
What Other Requirements Must Be Met to File a Medical Malpractice Claim In Florida?
Florida law relevant to medical malpractice includes the following procedural requirements that make filing a medical malpractice claim difficult.
Pre-suit Investigation: An investigation is required before filing a claim to ensure sufficient grounds to believe that medical negligence occurred and that it likely caused the injury.
Notice of Intent: A notice must be sent to all potential defendants letting them know that the claimant intends to initiate litigation for medical negligence.
Waiting Period and Pre-suit Discovery: A 90-day waiting period after the Notice of Intent to sue is issued and is designed to give defendants a chance to investigate.
Pre-Suit Extension: A 90-day extension of the statute of limitations is automatically granted for those who seek it for the pre-suit investigation.
Statute of Limitations: The Florida statute of limitations for medical malpractice lawsuits is two years from the date of the medical negligence or when it was or should have been discovered.
Statute of Repose: The statute of repose imposes a four-year deadline, regardless of when the medical negligence was discovered. The only exception is when the case involves children under the age of eight, or in the case of fraud, concealment, or intentional misrepresentation of the facts.
When to Involve a Medical Malpractice Attorney
Suppose you have sustained an injury because of a healthcare provider's negligence. In that case, it is essential that you contact an experienced medical malpractice attorney to help you navigate through the justice system. At The Watson Firm, PLLC, we will evaluate your case for free and you won't have to pay us unless/until we win the case.
Contact us today at (850) 607-2929 or via our online contact form for a free consultation.