The Process of Pursuing a Florida Medical Malpractice Claim
Many people want to pursue a medical malpractice claim against a physician, hospital, or other medical provider based upon some negligent services that were provided. In Florida, there are strict requirements both procedurally as well as deadlines for a claim.
Statute of Limitations
A common legal term is “Statute of Limitations.” However, many don’t understand the significance of this legal term of art. Statute of Limitations is a timeframe, which is imposed by Florida Law – which dictates the amount of time that a plaintiff has to sue for a Florida medical malpractice claim.
On top of this time limit to sue for malpractice, Florida also requires certain procedural steps to have a viable claim. If these steps are not taken incorrect order, it could unfortunately cause the party to not have all the requirements satisfied in the timeframe that Florida sets out.
Florida’s Damage Limits
Florida has recently introduced “caps” on the number of damages that a plaintiff can receive in a Florida medical malpractice claim. These caps are enacted as a result of Tort Reform Legislation. Proponents of these caps argue that they will lower the costs of healthcare. On the contrary, argue they do not affect the price of the medical malpractice insurance policy.
Florida Legislators have recently tried to “cap” the amount of non-economic damages to $500k and $1M. However, in 2017, the Florida Supreme Court that these caps were unconstitutional. They reasoned that the cap “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.”
Florida does have a law, which is valid, which limits the number of punitive damages. Punitive damages are served to deter and prevent the conduct from occurring again. These caps are either: three times the amount of compensatory damages or $500k, whichever is greater. These damages are only available when the defendant has acted with gross negligence or intentional misconduct.
What is the Time Limit for a Florida Medical Malpractice Claim?
Each State in the United States sets its own deadline for a claim. In Florida, this deadline is two years from when the plaintiff knew about an injury. Specifically, this “two-year” requirement is measured from the time that the plaintiff knew or should have known of the injuries and that these injuries were a result of medical malpractice.
Florida also has a very strict requirement, called the Statute of Repose. The basis of this Florida Law does not permit a claim after four years of the date of the procedure/malpractice. Only when a plaintiff can prove that concealment, misrepresentation, or fraud exists, will the plaintiff have a seven-year deadline to file a Florida Medical Malpractice Claim.
What are the Procedural Requirements?
The plaintiff needs to complete before the time deadline. They require that the plaintiff complete certain steps to actually move forward with a claim.
The plaintiff must first complete an investigation. This investigation must lead to the conclusion that there are grounds for the claim. Afterward, the plaintiff needs to seek a written opinion by a medical expert. This opinion must supports that there is in fact malpractice. In court, the credibility of the medical expert is often attacked. Thus, it is important to make sure that the person providing an opinion is an actual “expert” in the area of the injury.
Before actually being able to sue in court, the plaintiff must notify the defendant(s). The plaintiff must notify via certified mail within 90 days before filing a suit. The statute of limitations is “tolled” during this time. So this time period will not count towards the two, four, or seven-year requirement of filing a claim.
The defendant(s) insurance company must respond during the 90 days. They must indicate that they admit liability to the malpractice, offer to settle, or reject the claim. If the defendant indicates that they wish to admit liability, then the plaintiff must respond within 50 days and either accept or reject this offer.
Speak to an Experienced Florida Medical Malpractice Claim Lawyer
Lulich Attorneys & Consultants has been handling medical malpractice claims in Florida for over 30 years. We understand the anxiety and stress that comes with malpractice. For this reason, we offer Free Consultations. Call our Sebastian Office (772-589-5500) or our Vero Beach Office (772-774-7771) to set up a Free Case Strategy session with an attorney. Or click here to fill out a Free Case Evaluation.