Medical Malpractice FAQ’s

You can pursue a successful medical malpractice case against a doctor, hospital, or health care provider provider if you are able to prove, by the greater weight of the evidence, that the actions of the medical provider represented a breach of the prevailing professional standard of care of the specialty of that medical provider. This rule can be found in Florida Statute 766.102.

The standard of care of a medical provider is the level of care, skill and treatment that is recognized as acceptable and appropriate by reasonably prudent similar medical providers.

If the doctor or hospital that treated you acted up to the standard of care of a reasonably prudent medical provider and you were still injured (for example, if your injury was a known-risk or danger of your procedure, surgery or operation), then you will not be able to pursue a medical malpractice or negligence case. You will only be able to pursue a medical malpractice case if you are able to prove that the doctor or hospital that treated you didn’t meet the standard of care of a reasonably prudent medical provider.

The way that you will prove that your doctor, hospital, health care provider or other medical provider didn’t live up to the prevailing professional standard of care will be by hiring another doctor in the same specialty (for example, a cardiologist or brain surgeon) who will review your records and the work of your treating doctor and form/offer an opinion about the treatment of your doctor and whether it lived up to the prevailing professional standard of care.

In order for a doctor to serve as an expert witness in a medical malpractice or negligence case, the doctor must:

1. specialize in the same specialty as the medical provider that committed medical malpractice or negligence. In other words, if the doctor that injured you was a cardiologist, then only another cardiologist can serve as an expert witness, testify for you in your case, and testify that your treating cardiologist committed malpractice. On the other hand, if the doctor who hurt you was a brain surgeon, then only a brain surgeon can testify for you, etc.
2. have spent professional time during the three years immediately preceding the date of the malpractice or negligence devoted to:
   1. the active clinical practice of or consulting with respect to the same specialty (i.e., cardiology, brain surgery, etc.), or
   2. teaching of students in an accredited health professional school or accredited residency or clinical research program in the same specialty, or
   3. a clinical research program that is associated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

This rule is pursuant to Florida Statute 766.1016.

If the medical malpractice or negligence was committed by a general practitioner, the expert you use in your case to testify on your behalf must have devoted time during the five years immediately preceding the date of the medical malpractice or negligence to the active clinical practice or consultation as a general practitioner, the instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine, or a clinical research program that is associated with an accredited medical school or teaching hospital and that is in the general practice of medicine.

A doctor who, because of active clinical practice or the teaching of students, has knowledge regarding the applicable standard of care for nurses, nurse practitioners, certified registered nurse midwives, physician assistants, or other medical support staff members may be able to serve as an expert witness and testify on your behalf that the medical support staff member committed malpractice or negligence.

If the medical malpractice in your case was committed by a osteopathic physician, podiatric physician or chiropractic physician in an emergency room (ER) setting, then only a doctor who has had substantial professional experience within the preceding five years while assigned to provide emergency medical services in a hospital emergency department (ER) can serve as an expert witness.

No, by law, you won’t be able to use your doctor or hospital’s bill or charge in Court.

Yes. In fact, if a foreign object is left in your body after a surgery or other medical procedure, it will be “prima facie” evidence of negligence on the part of the doctor, hospital, health care provider or medical provider. Prima Facie evidence is evidence that is strong enough to prove negligence on its own, unless it is proven otherwise.

If your dentist does something or treats you without your consent, yes you can pursue a medical malpractice or negligence case against the dentist unless 1) the dentist’s actions to obtain your consent for the treatment or procedure were in accordance with an accepted standard of dental practice among members of the dental profession with similar training and experience and 2) a reasonable individual, from the information given by the dentist, would have had an understanding of the treatment/surgery, the alternatives, and the risks that go along with the treatment or procedure.

Also, if it can be proven that you would have reasonably been expected to have undergone the procedure anyway, you will not be able to pursue a case. This rule is based on Florida Statute 766.103.

“Informed consent” refers to your consent or approval of the procedure, surgery or operation that was performed on you. That approval must be informed, meaning that it must be an approval based on adequate information provided to you – including information regarding alternatives and risks.

If you are not given informed consent before your procedure, surgery or operation, then yes you may be able to pursue a medical malpractice or negligence case.

A signed informed consent form will be presumed to be valid, unless it can be proven that it isn’t. Additionally, such signed consent will only be valid if the person who signed it was mentally and physically competent to do so/capable of doing so.

Yes, before filing a medical malpractice lawsuit, either you or your attorney, lawyer or law firm must first do a reasonable investigation to determine that there are grounds for a good faith belief that there has been malpractice or negligence in your care or treatment.

Further, your Complaint (the document which begins your lawsuit) must include a certificate that this reasonable investigation occurred and that a belief of malpractice or negligence exists. This belief may come from a written opinion of an expert that there appears to be medical malpractice or negligence. This written opinion cannot be “discovered” or gotten by the defense in your case.

If a court later finds that there was no such belief, then a judge can order you or your attorney, lawyer or law firm to pay the attorney’s fees and costs of the defense. Additionally, the judge can recommend that your attorney, lawyer or law firm be disciplined by the Florida Bar.

If you petition the clerk of the court in the county where the lawsuit will be filed and pay a filing fee, a 90-day extension of the statute of limitations will automatically be granted. However, this cannot be done if the statute of limitations in your case has already run.

The requirement for the investigation discussed above is governed by Florida Statute 766.104.

Yes, if your loved one passed away due to the medical malpractice or negligence of a doctor or hospital, then you are entitled to the medical records of the doctor or hospital. In fact, these medical records will probably be vitally important to the medical expert that you hire to determine if there was malpractice or negligence. This rule is pursuant to Florida Statute 766.104, which can be found here:

The Florida Patient’s Compensation Fund is a state-sponsored fund that operates similar to an excess insurance policy for doctors and hospitals. That is, if you get a jury verdict bigger than the insurance policy limits of the doctor or hospital that caused your injury, then the excess will be paid by the Florida Patient’s Compensation Fund.

Most hospitals are obligated to make annual payments into the fund. Any jury verdict above what the Florida Patient’s Compensation Fund will pay must be paid by the doctor or hospital that caused your injury. Additionally, the doctor or hospital whose malpractice or negligence caused your injury will have to pay any punitive damages that are awarded to you – as the Florida Patient’s Compensation Fund will not pay for punitive damages.

Yes, before filing your medical malpractice or negligence lawsuit, you must give notice to each possible defendant/s in your case (called a notice of intent). This notice must:

1. tell the defendant/s all of the doctors, hospitals, health care providers or medical providers that you treated with in the two years prior to the malpractice or negligence
2. provide copies of all of the medical records relied upon by the expert you used in your pre-suit investigation described above.

Along with this notice of intent, you must include an “authorization for release of protected health information,” so that the defendant can get your medical records in order to evaluate your case.

Yes, after filing a medical malpractice lawsuit, you are actually required to send a copy of the lawsuit to the Department of Health and, if the lawsuit involves a medical facility, the Agency for Health Care Administration. The Department of Health or the Agency for Health Care Administration may potentially decide to take disciplinary action against the doctor or hospital whose medical malpractice or negligence caused your injury. This requirement is based on Florida Statute 766.106.

After giving notice to the potential defendant doctors, hospitals, medical providers or health care providers in your case, it is required that you wait at least 90 days before filing suit. During this period, the defendants shall investigate the claim in good faith. The insurance company for one of the defendants may require you to appear in front of a pretrial screening panel or a medical review committee and undergo a physical examination.

Any statement or documents that come about during the pre-suit screening period or process are not discoverable. This means that one party to your case cannot get documents created by the other party during the presuit screening period or process.

Additionally, documents that come about during the presuit screening period or process are not admissible in your trial. That is, one party cannot use in trial documents created by the other party during the presuit screeing period or process.

Yes, during the presuit screening period or process of your medical malpractice or medical negligence case, you may be required to appear for an unsworn statement. Unsworn statements are like depositions, only you are not sworn or under oath during the statement.

You or your attorney may also take an unsworn statement of the defendant or any witnesses to the case.

Such unsworn statements are only to be used for purposes of the presuit screening period or process and are not to be used in your trial later on in the case.

During the presuit screening period or process, you may also be able to obtain documents from the defendant. When you make such a request, the defendant must comply and produce the documents within 20 days.

You may also ask written questions of the defendant during the presuit screening period or process.

Finally, during the presuit screening period or process, the defendant doctor, hospital, medical provider or health care provider may request to interview your other treating physicians. The defendant may request an unsworn statement of those treating physicians as well.

Yes, as part of the presuit screening period or process of your medical malpractice or negligence case, you may be required to submit to a physical or mental examination.

After the defendant in your case is finished with its investigation, it will do one of three things:

1. reject the claim,
2. make a settlement offer, or
3. make an offer to go to arbitration

If the defendant offers to go to arbitration, liability will be admitted. This means that the defendant will not contest fault or claim that he, she or it was not negligent. Further, the defendant may agree to arbitration only if you agree to limit the amount of damages (i.e., money) that you will be asking for at the arbitration.

If the defendant does not respond to your notice within 90 days, then it will be deemed to have rejected the claim.

Once the defendant in your case has responded, your attorney must tell you of the response – as well as its consequences, including an evaluation of the likelihood of a lawsuit’s success, the time it might take and the costs that will be required to prosecute the case.

Yes, if either of the parties in your medical malpractice or negligence case request it, the Judge or Court in your case may order “non-binding” arbitration. Non-binding means that neither party has to accept the result. The result of the arbitration will be voluntary, and all parties will need to agree to it in order for it to go into effect.

Arbitrators shall be chosen from lists of approved arbitrators provided by the Judge in your case. Within twenty days, the defense in your case shall choose an arbitrator from the list of defense arbitrators provided by the Judge, and you shall choose an arbitrator from the list of Plaintiff’s arbitrators. Together, the two arbitrators shall pick a third arbitrator.

The arbitration shall be scheduled within 60 days of the selection of the arbitrators. This is pursuant to Florida Statute 766.107.

At your medical malpractice or negligence arbitration hearing, the arbitrators will decide all issues of your case – including the amount of compensation to award you.

The arbitrators will do so by hearing testimony from witnesses and considering evidence in the case.

The decision of the majority of the arbitrators will control the outcome. For example, if two arbitrators vote one way and the third another, the decision of the two arbitrators who agree will prevail.

After a medical malpractice or negligence arbitration hearing, the arbitrators must make their decision within 30 days.

No, unless the parties to your case have agreed otherwise, the result of your medical malpractice arbitration is not binding. That is, it is only final if both parties (both you and the defendant in your case) accept it. If that happens, then it will be considered a settlement and your case will be over. Otherwise, the arbitration decision is not final.

If either party does not accept the result of the arbitration, then that party may request a trial in the Court in which the medical malpractice lawsuit was filed.

No, your medical malpractice arbitration hearing will not be admissible in your trial, and nobody in the case will be able to mention it to the jury.

Yes, within 90 days of service of your notice of intent to initiate litigation against the defendant in your medical malpractice case, either party may offer to go to voluntary binding arbitration. Voluntary binding arbitration is voluntary in the sense that it will only occur if both parties accept. The offeree (the party to whom voluntary binding arbitration is offered) has 30 days to accept the offer and agree to go to voluntary binding arbitration.

Voluntary binding arbitration is different from the non-binding arbitration mentioned above in that, with voluntary binding arbitration, the decision of the arbitration panel will be binding and final. That is, if you don’t like the result, you can’t then refuse to accept it.

If you elect to go to voluntary binding arbitration in your medical malpractice case, then you case will be decided by an arbitration panel. The arbitration panel will be made up of one arbitrator selected by you, one arbitrator selected by the defense, and an administrative law Judge not selected by either party. The administrative law Judge will serve as the Chief Arbitrator.

The arbitration panel will decide what compensation is awarded to you. If the arbitrators disagree, then the majority will rule. The panel can award you your medical expenses, including past and future medical bills. It can also award you up to 80 percent of your loss wages and loss of future earning capacity. Loss of future earning capacity refers to the amount of money that you will lose in the future as a result of your not being able to work or not being able to work as much.

The arbitration panel can also award you non-economic damages for your pain and suffering (described above) in a number up to $250,000.

After an arbitration award, the defendant may be ordered by the arbitration panel to pay your attorney’s fees – although this number cannot exceed 15% of the amount awarded you for your injuries by the arbitration panel. The defendant shall pay all of the costs of the arbitration, other than the cost of the administrative law Judge.

If you go to arbitration in your medical malpractice case, the arbitration panel will decide how much compensation you receive. After the initial arbitration, the multiple defendants in your case may go to a separate arbitration to determine what percentage of your award each will pay.

If the defendant in your medical malpractice case rejects your offer to go to arbitration, then the case will proceed forward towards trial. If the case doesn’t eventually settle and actually goes to trial, you will be entitled to attorney’s fees of up to 25% of the amount awarded you by the Jury if you win.