Florida Medical Malpractice Law: Common and Frequently Asked Questions Regarding Lawsuits For Injury or Wrongful Death Due to Doctor, Hospital or Nurse Medical Negligence

Florida Medical Malpractice Law _Statute of Limitations_fightsforyou.netIn the many hospitals in the State of Florida, as well as in the multitude of urgent care and personal injury clinics popping up, medical malpractice can happen in South Florida and all over the country. Medical malpractice involves negligence litigation where a hospital, doctor, nurse practitioner, dentist, psychiatrist, anesthesiologist or other medical provider violates the accepted standards of care (which requires expert testimony to prove such medical negligence at trial) and acts in a negligent manner, and which then leads to catastrophic injuries or even death.

Some of the most common injuries and causes of medical malpractice in the State of Florida can include the following:

  • Failing to properly deliver a baby or newborn resulting in birth-related injuries (including birth-related neurological injuries, cerebral palsy, shoulder dystocia, brachial plexus injuries, forceps or vacuum injuries, cystic fibrosis, cephalohematoma, subconjunctival hemorrhage, developmental delay, newborn persistent pulmonary hypertension, spinal cord injuries, jaundice, seizures, erb’s palsy, hypoxia (brain damage), nerve injury damage, paralysis, stillbirth, fetal distress, C-section issues, injuries to the mother (such as preeclampsia, and eclampsia in the mother) and other birth injuries;
  • Failure to listen to the patient and recognize symptoms;
  • Failure to examine a patient’s medical history;
  • Failure to interpret tests in a proper manner;
  • Ordering a wrong test for a patient;
  • Failing to monitor a patient after surgery or failing to provide the appropriate post surgical care (which can result in infections from catheters or infections at the surgical wound, sepsis, internal bleeding, necrosis of tissue, blood clots, deep vein thrombosis’, air embolisms and pulmonary embolisms);
  • Pharmacy and medication errors (involving the wrong dosage, wrong medication, label errors and insufficient medical history);
  • Surgical errors (such as leaving a surgical instrument in you, operating on the wrong body part, limb or patient, and post-surgical infections);
  • Leaving foreign objects or bodies in you after surgery (such as a sponge, clamp, plastic glove, surgical needle, forceps, tubing, medical device, etc.);
  • Improper care after a surgical procedure;
  • Lab test errors regarding tissue, blood or urine samples;
  • Failure of nurses, doctors, surgeons, interns or support staff to maintain hygiene and wash their hands;
  • Errors by a nurse practitioner;
  • Errors by a physicians assistant;
  • Errors by a midwife;
  • Errors by a medical doctor (M.D.), doctor of osteopath (D.O.), orthopedic, radiologist, gynecologist, obstetrician, cosmetic surgeon, plastic surgeon, neurologist, neurosurgeon, podiatrist, cardiologist, urologist, psychiatrist, etc.;
  • Errors in administering anesthesia during a surgical procedure;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of a medical condition;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of cancer (such as pancreatic cancer, breast cancer, cervical cancer, colon cancer, lung cancer, liver cancer, bone cancer, gall bladder cancer, gastrointestinal cancer, brain cancer, ovarian cancer, uterine cancer, bladder cancer, kidney cancer, lymphoma, mesothelioma, myeloma, thyroid cancer, prostate cancer, skin cancer (melanoma, basal cell or squamous cell), brain tumors, stomach cancer, testicular cancer and vaginal cancer);
  • Failing to diagnose, delayed diagnosis or misdiagnosis of stroke or heart attack symptoms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of diseases, viruses, blood disorders (leukemia) and blood infections;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of blood clots, circulation problems and aneurysms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of bacterial  infections or viral infections;
  • Failing to fully evaluate, treat or monitor a patient;
  • Failing to properly sanitize medical and surgical instruments;
  • Errors involved in blood transfusions;
  • Errors regarding nerve blocks;
  • Errors involved in treating kidney problems (including dialysis errors);
  • Medical device issues involving the design, maintenance or manufacturing, ie., a product defect (can include heart devices, heart monitors, pacemakers, defibrillators, stents, drug-coated stents, drug-eluting stents, artificial valves, cardiac devices, radiological devices, artificial joints, Mirena IUD issues, bone implants (Medtronic Infuse Bone Graft) hip implants (metal on metal hip replacements, DePuy ASR hip implant, Stryker Rejuvenate and ABG II modular-neck stem implants or Zimmer Durom Cup hip replacement implant), jaw implants, breast implants, cosmetic implants, pain pumps, knee replacements (Zimmer NexGen knee implant), respiratory devices, Avaira contact lenses, surgical mesh, transvaginal mesh, Artelon CMC Spacer devices, Bard IVC filters, and hardware implantation for broken bone surgeries or spinal surgeries);
  • Dangerous and defective pharmaceutical drugs, ie., a product defect (can include such drugs as GranuFlo (NaturaLyte), Serzone, diethylstilbestrol (DES)/stilboestrol, Digitek, Tequin, Levaquin, Paxil, Trasylol, Claravis (Chantix), Vioxx, Actos, Ortha Evra, Baycol, Pradaxa, Fosomax, Allopurinol (Zyloprim), Topamax (Topiramate), Fen-Phen, Lexapro (escitalopram), phenylpropanolamine, Yasmin (Yaz or Ocella), Zoloft (sertraline), ;
  • Emergency room (ER) and hospital errors (due to the under-staffing, over-working and communication issues between medical personnel; vague discharge instructions; delayed treatment that causes fatalities or failure to follow up with the patient);
  • Errors involved in gastric bypass surgeries;
  • Errors involved in Lasik eye surgery;
  • Errors involved in dental surgery;
  • Lack of informed consent; and
  • Nursing home errors, neglect and abuse.

What is the Florida Statute of Limitations (ie., how much time a patient has to file a lawsuit) applicable under Florida medical malpractice law?

In general, Florida medical malpractice law states that a patient has two years to file a lawsuit due to a doctor’s or hospital’s negligence. According to Florida Statute 95.11(4)b), if someone sustains an injury or is killed due to the negligence of a Florida medical practitioner (ie., medical negligence), under Florida medical malpractice law, a Miami Florida medical malpractice attorney has two years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

Under Florida medical malpractice law, an “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

What damages can be secured if a patient is injured due to the medical negligence or medical malpractice of a Florida doctor, hospital, nurse or other medical practitioner?

Should a patient be injured as a result of medical malpractice and they hire a Hialeah Florida medical malpractice attorney, and a lawsuit is filed, the types of damages that can be secured can include:

  • pain and suffering (both past and future, such as for a future surgery);
  • disability;
  • disfigurement (such as scars and/or loss of a leg or other limb);
  • mental anguish (could include psychological damages);
  • loss of capacity for the enjoyment of life (one may not be able to do the same things you used to);
  • hospital, nurse or other medical expenses, both past and future (medical bills, insurance liens, EMS/ambulance bills, etc.);
  • loss of earnings or wages (if you miss work due to the injury or going to a doctors appointment; loss of sick or vacation time);
  • loss of ability to earn money in the future (whether you can no longer work, or cannot perform the same job you used to);
  • aggravation of a previously existing condition (if you had back or neck pain that is made worse);
  • Punitive damages (although the threshold to prove this type of damage is quite high, they can be awarded if the case is made that a doctor knowingly behaved in a harmful way that caused malpractice or negligence);
  • Wrongful death damages (assuming a death is caused by the medical malpractice or doctor negligence).

What is the definition of a healthcare provider covered under Florida’s Medical Malpractice Act?

According to Florida Statute 766.202(4), a healthcare provider means any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458 (medical doctor’s — ie., M.D.’s), chapter 459 (doctor of osteopath — D.O.’s), chapter 460 (chiropractor — D.C.), chapter 461, (podiatrist — ie., a foot doctor)  chapter 462 (naturopathic treaters such as dietetics, psychotherapist, hydrotherapist, etc.), chapter 463 (eye doctors – ie., optomestrist’s), part I of chapter 464 (nurses), chapter 466 (dentists), chapter 467 (midwifes), part XIV of chapter 468 (orthotics and/or prosthetics), or chapter 486 (physical therapists); a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by a doctor, physician or other medical provider’s medical negligence?

According to Florida Statute 766.102(1), in any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.

(3)(a) As used in this subsection, the term:

1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services.

2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services.

3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by an emergency room doctor, physician, nurse or other emergency room medical provider’s medical negligence, when responding to a sudden medical emergency?

According to Florida Statute 768.13 (Florida’s Good Samaritan law), an emergency room doctor or other personnel must act with a reckless disregard (could be willful or wanton conduct) to the consequences of their medical diagnosis and treatment.  Under Florida Statute 768.13(2)(a) and 2(b), any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Florida Statute 768.13(2)(b)(1) Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

Florida Statute 768.13(2)(b)(3) For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

Florida Statute 768.13(2)(c)(1) Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

What is the definition of medical malpractice or medical negligence under Florida’s Medical Malpractice Act, Chapter 766 of the Florida Statutes?

According to Florida Statute 766.106(1)(a), a “Claim for medical negligence” or “claim for medical malpractice” means a claim arising out of the rendering of or the failure to render medical care or services.

Can I sue a hospital for the medical negligence of its employee’s or agents?

Yes.  Florida Court’s have opined that that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of a hospital’s agents acting in the course of their employment should be treated as the negligence of the hospital, to which the hospital can be held vicariously liable.

What is informed consent and what is required of doctors and physicians under Florida law?

Florida Courts have noted that a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure, and that unless a person knows the risks and dangers of such a procedure, “consent” does not represent a choice and is ineffectual under Florida law.

In fact, the Florida legislature has codified the doctrine of medical informed consent in general under Florida Statute 766.103, which states the following (this does not apply in a “Good Samaritan” situation for emergency medical care):

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced registered nurse practitioner certified under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when:

(a) 1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and

2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or

(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in accordance with the provisions of paragraph (a).

(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

Do all Florida doctors and physicians have Florida medical malpractice insurance?

In general, no. According to Florida Statute 458.320, while doctors are required to have policies of insurance of $100,000 per claim or $300,000 in the aggregate (this requirement is $250,000 with an aggregate of $750,000, for a doctor or physician with staff privileges), just to practice medicine in this State, they can meet this requirement by proving they have other assets (such as letters of credit), or they can simply be able to respond to a judgment in the baseline amounts.  Doctors who avoid the Florida medical malpractice insurance requirement are also required to post a notice in their office in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes penalties against noninsured physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law.”

Moral of the Story: if you are injured or a wrongful death occurs due to medical malpractice, doctor medical negligence, nurse medical negligence, hospital medical negligence or other medical and healthcare professional type neglect, whether the Florida medical malpractice or Florida medical negligence happens in Deltona, Daytona, Fort Pierce, Brandon, Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, New Port Richey, Sarasota, Pensacola, Hollywood, Port Charlotte, Palm Beach Gardens, Panama City, Ocala, Cape Coral, Miami Gardens, Saint Augustine, Aventura, Miami Beach, Hialeah, Winter Park, Altamonte Springs, Port Orange, West Kendall, Homestead, the Florida Keys, Titusville, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that patients who are seriously and catastrophically injured in Florida medical malpractice and medical negligence accidents may have options available under Florida law that may require the retention of a Miami Florida medical malpractice lawyer, a Fort Lauderdale Florida medical malpractice birth-related injury attorney, a Palm Beach Florida failure to diagnose cancer lawyer, or a Miami Beach misdiagnosis medical negligence attorney, given the many complexities involved when injured due to medical malpractice and a doctors neglect, and the unknown of whether a Florida medical malpractice insurance claim is possible given Florida’s two year statute of limitations (SOL) for Florida medical malpractice claims.