Welcome to our Medical Malpractice FAQ page. This page answers some of the most common medical malpractice questions that we see and hear as medical malpractice lawyers with decades of trial experience.
It’s important to note that information within this page can help guide someone in the right direction; however, this is not a substitute for professional legal advice. If you or a loved one has been injured by a medical professional, it’s important to seek advice from a medical malpractice attorney as soon as possible as there’s a statute of limitations on your claim.
Medical malpractice, from a legal perspective, is not simply about experiencing pain or a negative outcome following a medical procedure. Instead, it’s about proving that a healthcare professional made a mistake or error during your treatment, which they should have reasonably avoided. For an event to be legally classified as medical malpractice, certain conditions need to be met:
- A formal patient-doctor relationship must exist: This relationship creates a “duty of care” from the doctor to the patient. Casual advice does not constitute a formal patient-doctor relationship.
- The doctor must have breached their duty of care: This refers to the doctor acting negligently, meaning they failed to uphold the standard of care expected in similar circumstances. An example might be a doctor making an avoidable error that any other reasonable doctor would have avoided, such as failing to sterilize tools or not asking about a patient’s current medication.
- The negligence must have caused injury: The doctor’s negligent actions must directly result in harm to the patient.
- The injury must have led to damages: The harm suffered by the patient, as a result of the doctor’s negligence, must have caused damages. These can include hospital bills, lost income, and physical pain and suffering.
It’s important to understand that, while a negative outcome can be deeply distressing, it isn’t considered malpractice unless these elements are present. Depending on the specifics of a claim, a patient might be able to recover compensation for their damages.
According to Florida Statute 95.11(4)(b), a person must file a medical malpractice lawsuit within 2 years of the date the harm from the malpractice was discovered, or could reasonably have been discovered. With that said, The statute of limitations on medical malpractice in Florida is not always cut and dry; various factors are involved in determining the amount of time someone has to file a suit. For instance:
- The two year statute of limitations may be extended to four years in cases where an action was not immediately discoverable
- Cases of fraud or concealment allow exceptions to the two year rule. In fact, once the fraud or concealment is discovered a patient has an additional two years from the time of discovery.
- The statute of limitations in regards to minors follows different guidelines and is determined on a case-by-case basis.
Refer to our comprehensive article on Florida’s medical malpractice statute of limitations for more information on this topic.
Medical malpractice occurs when the following criteria are met:
- A formal patient-doctor relationship exists
- The doctor must have breached their duty of care and acted negligently
- The doctor’s negligence caused injury
- The injury led to damages to the patient
The cost of medical malpractice insurance can vary widely depending on several factors such as the type of medicine you practice, your specific specialty, the amount of coverage you need, your claim history, and geographic location, among others.
With that said, Florida has certain requirements regarding the amount of medical malpractice insurance physicians must carry. Doctors must purchase up to $100,000 in malpractice coverage. Physicians working in a hospital setting are required to have $250,000 malpractice insurance. Of course, there are “loopholes” and some doctors ignore the guidelines and do not purchase insurance. This is also known as “going bare” which is never advisable.
Suing for medical malpractice in Florida is a detailed process with certain state-specific requirements. Here is a simplified step-by-step guide to give you an overview of the process.
- Consult with an Attorney: Medical malpractice cases can be complex and require a deep understanding of both medicine and law. An experienced medical malpractice attorney can guide you through the process and ensure you meet all necessary legal requirements.
- Pre-Suit Investigation: Under Florida law, before you file a medical malpractice lawsuit, your attorney must conduct a detailed investigation of your claim. This includes obtaining and reviewing all relevant medical records and, importantly, obtaining an affidavit from a medical expert confirming that there appears to be evidence of malpractice.
- Notice of Intent to Sue: If the pre-suit investigation yields evidence of malpractice, you must then provide each potential defendant with a “Notice of Intent to Initiate Litigation for Medical Negligence.” This notice must include the affidavit from your medical expert.
- Mandatory Settlement Conference: Once the notice is sent, there is a 90-day pre-suit period during which the defendant(s) can investigate the claim, and both sides must participate in a settlement conference. If a settlement is not reached, the claimant may then file a lawsuit.
- Filing a Lawsuit: If the case doesn’t settle during the pre-suit period, your attorney will file a lawsuit against the healthcare providers alleged to have committed malpractice. From there, the litigation process includes discovery, possible settlement negotiations, and potentially, a trial.
Finding a medical malpractice attorney can be as easy as conducting an online search for “medical malpractice attorney near me;” With that said, finding a qualified and experienced medical malpractice lawyer is critical to your case’s success. As a result, it’s important to research and compare options rather than calling the first one you see.
Here are a few methods to filter through results and decide on the best legal practitioner for your case,
- Utilize referrals and recommendations by trusted sources
- Check local and state bar associations
- Read through online reviews and directories
- Interview potential options
- Check credentials and track records
- Check their experience and cases they may specialize or focus on
- Consider how you feel while talking to your prospective lawyer
A person must file a medical malpractice lawsuit within 2 years of the date the harm from the malpractice was discovered, or could reasonably have been discovered. There are only a few exceptions to this rule. For instance, the two year statute of limitations may be extended to four years in cases where an action was not immediately discoverable. In Florida, a patient has up to four years from the initial occurrence of the medical malpractice incident. However, after four years only fraud and cases involving minors may be considered.
Cases of fraud or concealment allow exceptions to the two year rule. In fact, once the fraud or concealment is discovered a patient has an additional two years from the time of discovery. It’s important to note that no case may be filed if the medical malpractice occurred more than seven years ago. So, if the fraud is uncovered eight years after the unfortunate incident, it is probably too late to file a lawsuit.
Medical malpractice lawsuits take on average 2-3 years in the State of Florida.
In order to prove medical malpractice an attorney must prove that a a physician or medical provider deviates from the standard of care and that deviation directly causes harm.
Medical malpractice and negligence are related concepts in law, but they’re applied in different contexts and have distinct characteristics. The key difference is that while all medical malpractice involves negligence, not all negligence cases involve medical malpractice. Medical malpractice is a subset of negligence that requires a specific breach of a professional duty of care in a medical context.
The average medical malpractice settlement varies greatly depending on a multitude of factors such as the severity of the injury, the impact on the patient’s quality of life, the degree of negligence involved, and the specific laws of the jurisdiction where the case is filed. It’s often reported that the average settlement ranges from $300,000 to $1 million. However, these are broad averages and individual settlements may be much lower or higher.
Medical malpractice lawyers advocate for clients who have suffered harm due to a healthcare professional’s negligence. They gather evidence, represent clients in court, negotiate settlements, and work to prove that a healthcare provider failed to meet the standard of care, resulting in injury or harm to the patient. Their ultimate goal is to secure fair compensation for their clients’ damages, which may include medical bills, lost wages, and pain and suffering.
Filing a medical malpractice suit involves several key steps. Firstly, you need to gather all relevant medical records and evidence of the alleged malpractice. Then, consult with a medical expert to confirm if the healthcare provider’s actions indeed fell below the standard of care. After this, hire a medical malpractice lawyer, who can guide you through the legal process. Your lawyer will likely start by sending a notice of intent to the healthcare provider, before filing a formal lawsuit in court. Note that timelines and specific procedures can vary by location.
Only if the parties mutually elect to go binding arbitration on damages after liability has been agreed to buy both sides. Then non-economic damages are capped.
Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.