If you or a loved one have experienced medical malpractice, the laws that govern how malpractice cases can be filed may be confusing. All states follow certain general principles when it comes to medical malpractice laws even though their laws may vary.
General elements to consider when filing a medical malpractice case in Florida include:
- Procedural rules for notification
- Statute of limitations
- Comparative negligence
- Statutory damage caps
Procedural Rules for Notification
Florida law requires that you follow certain procedures before you can file your medical malpractice lawsuit. Although your Florida medical malpractice lawyer will be able to guide you through these steps, it may help you to have a general idea of what to expect.
- Serving Notice Of Claim — You need to notify each potential defendant named in your suit to tell them that you plan to file a medical malpractice lawsuit against them. This notice must be sent through certified mail at least 90 days before the lawsuit is filed
- Investigation — Before filing your suit, Florida law requires that you investigate to determine if your health care providers were actually negligent in the way they treated you. This investigation will include consultation with other medical experts
- Medical Expert Affidavit — When you consult with medical experts who agree that your health care providers were negligent, they need to sign an affidavit that says they are willing to testify to this in court
- Authorization To Release Protected Health Information — Your health care providers will need to conduct their own investigation of your case in order to respond to your claim and attempt to defend themselves. To allow them to do this, you are required to provide them with authorization to access your medical records
Statute of Limitations
Florida law states that you have to file your medical malpractice lawsuit within two years after you discover (or reasonably should have been expected to discover) the injury caused by medical malpractice, and no more than four years after the malpractice took place.
There are exceptions to this law that allow you to file after these time limits have expired:
- If the patient is a child who is under the age of eight when the lawsuit is filed, the four-year limit does not apply
- If your health care provider knew about the malpractice and took steps to conceal it from you, the suit can be filed up to seven years after the malpractice took place
- If the patient is deemed legally incompetent, the time table for filing may also change based on the appointment of a legal guardian and his or her awareness of the injuries
If you are in any way responsible for your medical injuries, for example by ignoring your doctor’s advice or failing to take prescribed medication, you can still file a medical malpractice lawsuit. The amount you can recover for damages, however, will be reduced based on how much of the fault lies with you in relation to your doctor’s fault.
Florida medical malpractice law follows a system known as “pure comparative fault.” In simple terms, this means that your health care provider will have to pay a percentage of damages based on the percentage of his or her fault. This is true even if the doctor’s portion of the fault is minimal and you were mostly to blame for the injury.
If you name multiple defendants and you are awarded damages of over $25,000, each person will be required to pay a portion of the settlement based on their degree of responsibility.
Statutory Damage Caps
If you had medical bills or lost wages because of medical malpractice, these economic damages will have a dollar amount for which you can seek reimbursement. You can also sue for non-economic damages such as pain and suffering. Since these are not as easily measured, some state laws place limits on the amount of money you can receive from a medical malpractice lawsuit.
For several years Florida’s cap on non-economic medical malpractice allowed two people with drastically varying injuries to be given the same settlement. This ended in June 2017 when the Florida Supreme Court Supreme ruled it unconstitutional for laws to limit the pain and suffering compensation.
An Experienced Attorney Can Help
The specific elements of your lawsuit will be dictated by the procedural rules and laws of your jurisdiction. An experienced medical malpractice attorney can help you understand Florida’s laws and answer any questions you may have.
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