The Complexity of Florida Medical Malpractice Law
Florida medical malpractice law is very complicated and specialized. Over the years medical and insurance interests have sponsored legislation designed to effect individuals’ ability to hold doctors and hospitals accountable for their mistakes – and overturn legal principals that are centuries-old and often rooted in our Constitution. The result is a system that is so complicated that it is important to make sure you hire a lawyer that truly specializes in medical malpractice law. Some examples of this complexity are:
Shorter Statute of Limitation
A statute of limitations is the maximum time that one can wait before filing a lawsuit. If a lawsuit is not filed within the applicable statute of limitation an injured individual can be forever barred from taking legal action against those responsible for causing his or her injury. The time period varies from state to state and depending on the type of claim. In Florida the statute of limitations for most types of negligence is 4 years. For medical malpractice it is shorter – generally 2 years (there are limited exceptions and extensions in Florida based upon such things as when the negligence was discovered and whether there was fraud involved).
It is important to realize that this time limitation is not how long an individual has to see a lawyer – it is the filing of the lawsuit that must be accomplished before the expiration of the statute of limitations. A lawyer will need time to gather records and investigate a potential claim before a lawsuit can ever be filed. For this reason it is important to contact a lawyer immediately if you intend to pursue your claim.
In almost all types of negligence an injured individual can hire a lawyer and explain how they have been hurt by someone else’s negligence. That lawyer can then create a legal document called a Complaint, and file that Complaint in the courthouse to begin a lawsuit. In Florida medical malpractice cases are very different.
In 1985 the legislature crated a plan requiring a presuit process that must be complied with before a medical malpractice lawsuit can be filed. The process is lengthy and expensive, and it requires that the lawyer do the following:
1. The lawyer must first conduct an investigation to verify that there are reasonable grounds to believe that a medical professional was negligent and that the negligence resulted in injury to the claimant;
2. The attorney must gather the medical records from the various health care providers and review these documents;
3. The records must be sent to a medical expert who is a “similar health care provider” for them to review the situation;
4. The expert must execute a “verified written medical expert opinion,” essentially an affidavit in which a doctor swears he has reviewed the records and believes there are reasonable grounds to proceed;
5. The attorney must then attach this affidavit to a “Notice of Intent to Initiate Litigation for Medical Negligence,” which is a document that contains the names of the prospective plaintiffs and defendants, and a summary of the claim and injury. This notice must be sent to each prospective defendant, and in some cases to state agencies.
6. The filing of the notice starts a 90-day “presuit investigative period” during which the parties exchange written questions, requests for documents and items, and take unsworn statements.
7. After 90 days the potential defendant generally rejects the claim (he or she can admit liability or make a settlement offer or offer to arbitrate at this point, but that happens very, very rarely).
After all of the above requirements have been complied with only then can a person injured by a Florida doctor or hospital file a lawsuit. As you can see it is a very complicated, time-consuming, and expensive process – and another reason why it is important to seek out a lawyer that specializes in medical malpractice litigation.
Exception to Wrongful Death
Wrongful death is when the death of a person is caused by the negligence or wrongful act of another. The right to bring a wrongful death action is created by Florida Statutes, which also defines who can bring the lawsuit and what they can sue for. Cases are generally brought by the “survivors,” which are generally defined as the decedent’s spouse, children under 25 years of age, or parents if the decedent is under 25. The survivors can generally sue for economic damages, like lost support and services, as well as for non-economic damages, like pain and suffering.
Sometimes it happens that a victim of negligence is not married and doesn’t have minor children. The law provides an exception in such a case to allow the decedent’s parents or adult children to bring a claim for pain and suffering. However, there is another provision that denies this right if the claim is for medical malpractice – an exception to the exception!
Thus, if a single man or woman with no children is killed by medical malpractice, no matter how blatant or obvious, there is generally no claim of pain and suffering allowed. This injustice is most commonly seen in cases involving medical errors that kill the elderly. They almost always have no minor children and are frequently without a spouse due to being a widow or widower. The doctor just gets away with it!
Sovereign immunity is an old English principle that dates back to the days when kings and queens ruled England. The principle holds that the monarchy is immune from criminal or civil prosecution. Stated simply it means you can’t sue the king. In America it means that the government is immune from suit, except to the extent it waives this immunity. In Florida the state has waived sovereign immunity to the extent that an injured individual may recover up to $100,000 for an individual, and potentially another $100,000 if there are dependants. Any amount above this must be sought through a Claims Bill – a special law that can be pursued for an individual that makes a recovery in excess of the above amounts. It is literally a law, complete with lobbyists, sponsors, committee votes, House and Senate passage, and eventually the Governor’s signature (or lack of votes and signature – it is at the government’s discretion).
The medical profession in Florida is attempting to creatively use this principle to try to shield itself from liability. It started with hospitals and clinics that are owned and run by state and local governments. Then other hospitals accepted a very small percentage of their revenue from taxpayer money and started calling themselves a “special taxing district” thereby availing themselves of sovereign immunity. Now huge multi-million dollar private corporations are attempting to call them selves state agents.
What happens is that one of these “special taxing district” hospitals contracts with a major medical corporation to provide physician services, such as emergency medicine or neonatology. The doctors are paid by the company, and the doctors and the company make millions. Then, when they make a medical mistake, they claim to be entitled to sovereign immunity based on their relationship with the hospital.
This situation is very complex, but we see it all the time. Make sure you hire a lawyer who specializes in this type of litigation, and is familiar with the games these huge corporations play, and is prepared to confront them in court.
In a typical auto accident case a client can come to a lawyer and explain his or her case. The client can tell the lawyer that they were hurt when a car ran a stop sign and hit them. The lawyer can then file the case and proceed to trial. At trial the law allows the client to explain to the jury that the defendant ran a stop sign, and the law allows the jury to understand that running a stop sign is negligent. In a medical malpractice case the injured person is not allowed to do that – to explain to the jury that a doctor ran a medical stop sign. The law requires that experts be used.
Over the years the law has been made more stringent in this regard, requiring that the expert be in a sufficiently similar specialty, engaged in a specific type of practice, and been doing so for a specified period of time. In many cases these provisions require the use of several experts in multiple specialties in order to prove a claim.
At Kelley Uustal every malpractice case we file is reviewed by a medical expert. We work with some of the finest medical minds in the world, and deal with physician experts from institutions such as Harvard, Yale, Johns Hopkins, Duke, Stanford, and UCLA. Every case gets the finest medical expert review as well as the finest legal service.
Caps on Certain Damages
For centuries the only cap on damages has been the wisdom of the jury. Recently, however, insurance and physician groups have pushed through legislation that would seek to have the government essentially climb into the jury box and tell the citizens of Florida what they can and cannot do. The government decides the value of a claim without hearing any evidence, and the jurors who have sat through the whole trial are limited in their decision!
In Florida, a law was passed regarding non-economic damages (elements such as pain and suffering) purporting to provide caps using a complex system that results in a limit of somewhere between $500,000 and $1,500,000. The constitutionality of this provision is still not decided. The result of such a provision strikes hardest at the poor and the elderly – folks who may have a horrible injury but cannot show great economic damages because they don’t have a high lost wage claim.
The system is very complex and must be attacked in specific ways. It is important to find and hire a lawyer that understands the system and is prepared to fight it.
NICA is an acronym that stands for Neurological Injury Compensation Act. It is another attempt to chip away at an injured individual’s right to hold the person that hurt them responsible for his or her actions. It is a no-fault system that provides that if certain situations regarding notice and type of injury are met, an injured child may be deprived of his or her right to sue, and instead be given a nominal amount of money by the state. The lawyers for the insurance companies and medical profession know this, and they try to thrust NICA on these children that bring claims.
In most instances the system is unfair and creates an unjust result. But, there are ways an experienced medical malpractice lawyer can fight the application of NICA. There are over a dozen specific requirements that must be met for NICA to apply, and if any one of them is lacking the case cannot be a NICA claim. It is important to find a lawyer that knows the system and can protect your rights.
ERISA is a federal law that was originally designed to protect people from big insurance companies. However, a very small section of this huge act provides that an individual has the right to file a grievance against their HMO. Another small provision of the law says that ERISA preempts (is chosen over) state law. Some courts have put these two together and concluded that ERISA’s right to file a grievance against an HMO preempts state medical malpractice law.
Florida has specific HMO provisions that can have the effect of protecting HMO’s from some types of lawsuits. In 2003 insurance companies proposed, and the legislature passed, specific provisions that limit the types of HMO claims that may be pursued.
HMO’s do not have absolute immunity in Florida. If you think you have been injured by an HMO’s negligence contact an experience medical malpractice attorney to advise you of your rights.
In 2002, the Florida Medical Association backed a constitutional amendment purporting to limit the amount of money a lawyer can charge in a medical malpractice case (the Amendment only limits the injured patient’s lawyer – doctors’ and insurance companies’ lawyers are free to charge whatever they want). The Amendment sought to limit a lawyer’s fees to a level that would make it impossible to undertake medical malpractice cases, and would make it impossible for malpractice victims to seek accountability from negligent or incompetent doctors.
While the Amendment passed, the Florida Supreme Court approved waiver procedures that would allow injured victims to hire the attorney of their choice. Still, it shows the efforts of big insurance and medical interests to throw yet another impediment in front of our citizens in seeking justice, and another attempt avoid accountability for negligent and reckless conduct.