In a typical negligence case, like a slip and fall, the courts will look to whether a "reasonable person" would have behaved in the same way or would have taken additional precautions to prevent injury. However, in a medical malpractice cases, Florida defines that standard of care as the "level of care, skill, and treatment which is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers under similar circumstances."
If the case goes to trial, the jury will be instructed to apply all the evidence to this standard to determine liability.
What Are the Types of Medical Malpractice Claims?
There are many different types of medical malpractice claims. The most common include:
- Misdiagnosis – Occurs when a medical professional misdiagnoses a serious condition or disease for a less serious one and the patient is further injured due to the misdiagnosis. A claim is often difficult to prove but is the most successful in the misdiagnosis of cancer.
- Surgical Errors – The most common of medical malpractice claims. The success of a surgery is usually irrelevant and applies more to situations when there is an error such as a surgeon sewing up a patient with a sponge left inside or the improper use of anesthesia.
- Prescription Drug Errors – Occurs when a side effect is known to be associated with a drug but it nonetheless improperly prescribed (e.g. a pregnant woman is given a drug known to cause birth defects.)
- Failure to Treat – Occurs when there is a correct diagnosis but the health professional does not follow through on treatment. May also occur when there is premature discharge from the hospital or a failure to perform adequate follow-up care.
What Are the Time Limits for Bringing a Medical Malpractice Claim?
Florida has relatively strict time limits for filing an action. A medical malpractice action must be brought within 2 from the date of the incident or when the condition was or should have been discovered. The statute of limitations for wrongful death is also 2 years, with time running from the date of death.
Because future injuries are not always discovered at the time of the negligent conduct, the effect of medical negligence may be present for many years following the actual medical treatment. Therefore, Florida further enacted a law called a "statute of repose", barring any claim after 4 years, discovered or not.
Note that there is one important exception in Florida. If there is fraud, concealment, or intentional misrepresentation on behalf of the hospital preventing discovery, the statute of limitations is extended to a maximum period of 7 years.
How Is Fault Determined?
The laws governing medical malpractice fault can be quite complicated. Florida adheres to the pure form of comparative negligence. This means that if you are at fault, the award will be reduced, but it will never completely bar recovery. The worst case scenario is that, in Florida, pre-existing conditions may limit the liability of the hospital, but it will not prevent you from winning in a lawsuit.
If multiple people are at fault (e.g. doctor, hospital and nurses) and your damages exceed $25,000, liability is apportioned among the defendants. Therefore, even if the doctor was at fault, the hospital is also liable (known as "vicarious liability"). The rationale is that a hospital is in a superior position to supervise and monitor physician performance and has a duty to select and retain competent independent physicians. Therefore, many plaintiffs sue multiple parties to ensure they are adequately compensated.
Finally, many states have passed legislation which puts a limit or "cap" on the maximum monetary award a plaintiff can collect. These laws are changing constantly and are frequently challenged as unconstitutional. Generally, Florida law states that a plaintiff cannot receive more than 500,000 in non-economic damages from a health professional.
Do I Need a Florida Lawyer?
If you or a family member has been injured by medical malpractice you should contact an experienced personal injury attorney immediately, who will help you navigate through this extremely emotional time. Consulting a Florida attorney is even more important in a state like Florida, due to their complicated laws and harsh time limitations for filing a case.