Few expect to endure unthinkable acts committed by doctors, nurses, and psychologists, but the unfortunate reality is they’re more common than you’d think. Families often watch in utter horror as their loved ones slowly deteriorate at the hands of professionals they trusted, trying hard to discount the fact that medical malfeasance is possible – let alone happening to their husband, wife, parent or child. We’ve previously discussed how to calculate a medical malpractice settlement, but since several changes were enacted in 2003, today we’ll reiterate how malpractice cases in Florida are established.
Establishing Breach of Care
Claimants who believe they breached the standard of care want to prove such. By greater weight of evidence, one must prove the professional care they or their loved ones received was substandard, or below what similar professionals deem appropriate in similar situations. Also, negligent medical intervention must be proven to have been unnecessary and outside foreseeable results of the procedure.
Existence of medical injury alone doesn’t substantiate provider negligence, nor is the admission of insurer’s reimbursement policies, records or determination in court allowable under law. Moreover, a medical professional cannot be liable for ordering supplemental diagnostic tests.
An element that one may find tossed around court frequently is prevailing standard of care. In layman’s terms, it’s how one’s professional conduct compares to others who perform similar procedures in a medical capacity.
Under Florida’s Good Samaritan Act and Emergency Services provision, civilians who administer gratuitous care outside of medical facilities are immune to malpractice suits.
If one believes they have a case, Florida statute requires attorneys to reasonably investigate the purported malpractice claim brought by the individual harmed, or the patient or decedent they represent. The extent of the investigation could involve getting an affidavit or statement from medical experts that negligent care took place.
Once the pre-suit investigation has concluded, and reasonable evidence merits moving forward with civil litigation, the aggrieved party must notify defendants of their intention to file suit. Once served upon defendants, the Department of Health must receive a copy, along with the Agency for Health Care Administration if the suit names a facility. Either party may request a court investigation prior to a final determination if there’s factuality behind the purported malpractice.
If courts deem an attorney’s investigation offers no claim against an entity or person who cooperated during initial discovery, the claimant may pay reasonable attorney fees to defendant’s counsel.
Attorneys who take these cases know the stakes are high, reviewing each case carefully before committing to litigation.
Florida malpractice laws establish that expert witnesses must testify in court that malpractice was possible given the level of care similar medical professionals provide absent claims of abuse. Qualifications of expert witnesses include:
- An individual who practices in a similar capacity to the alleged physician(s);
- An instructor of the same capacity;
- Clinical researcher in the same field;
General practitioners must have at least five years leading up to the suit within the same scope above to testify as an expert witness. Moreover, those who testify as experts cannot receive payment on contingency.
Cap on Monetary Awards
Those who successfully take cases to court may get certain monetary damages for their medical malpractice claim. Florida courts have statutory limits on the amount each provider can be liable for, which a federal appellate court upheld as constitutional in 2011. However, in a huge victory for victims, Miami-Dade Judge Rodriguez ruled that intangible damages were unconstitutional.
For noneconomic damages, current limits are:
- $500,000 in non-emergencies imposable on each practitioner (or their employer) found liable
- $750,000 and $1.5 million for non-practitioners, respectively
As a note, caps are slightly higher if negligence resulted in death.
Medicaid recipients cap at $300,000 worth of noneconomic damages, and $200,000 per practitioner.
Voluntary Arbitration Option
After pre-suit investigation concludes, either party may elect to enter voluntary binding arbitration. In arbitration hearings, a panel of three officiants hear the case instead of a judge.
Each party can elect one arbiter, and the two selected arbiters elect the third. Once finalized, the panel usually hears the case within 60 days of the panel selection. The panel cannot award punitive damages.
Punitive damages are disallowed, and noneconomic damages are capped at $250,000 per claim. The three-panel arbitration board will determine what percentage of the cap to award. So, if the board determines an individual can only enjoy 20 percent, they award $200,000 (80 percent) of the cap.
The panel’s final determination deliver within 30 days of hearing, and is not binding. Either party may request trial by court.
Medical Malpractice Laws Are Evolving
Information referenced above is from the current Florida statute, but may change.
They treat these cases much stricter with a much stronger standard of evidence required to prove negligence. In respect to monetary awards, each case differs in physical, emotional and financial damages.
Hundreds of medical negligence cases across Florida are decided weekly. It’s important to know what legal remedies are available.
The experienced medical malpractice attorneys at Burnetti, P.A. know each person’s claim is time-sensitive. Know your rights and pursue legal action when wronged. Contact our firm today for an initial consultation at no cost to you.