Medical Malpractice Cases in Florida: Rules you need to know

December 16, 2010

In order to sue for breach of contract, for injuries from an automobile accident or a slip and fall, the plaintiff need only file a complaint in the proper jurisdiction and pay the necessary filing fee. ($400.00 at this time). However, in order to sue a doctor , hospital or other medical care provider, there are specific prerequisites ( some may call hurdles) which must be met in order to even file a lawsuit for medical malpractice in Florida.

The first difference between a medical malpractice case and other negligence based claims concerns the applicable Statute of Limitations. Florida Statute 775 mandates that a professional malpractice lawsuit must be commenced within 2 years of the negligent act upon which the lawsuit is based.

Since in many circumstances the commission of the negligent act is not immediately discovered, the statute provides that the “clock” does not start running until the act was known or should have been known by the patient, but in any circumstance, the lawsuit must be commenced within 4 years of the negligent act.

Florida Statute 766 provides that once the plaintiff decides to proceed with a lawsuit, he or she must properly investigate their potential case, obtain the sworn expert opinion of a properly qualified doctor that negligence was present and caused injury, and then send written notice to the prospective defendant/doctor of the plaintiff’s intention to initiate litigation.

Once the Notice of Intent to Litigate is received, the defendant / doctor has 90 days to investigate the claim, take discovery ( which may include requiring the physical examination of the claimant ) and either offer to negotiate a settlement or deny the claim. If the claim is denied, the plaintiff has 60 days from the denial, or the end of the 2 year statutory period ( whichever is later) to file suit.

In theory, this procedure was thought to promote expeditious settlements of cases where liability is clear and the damages are easily calculated. In practice, most claims are merely delayed 90 days in order to comply with the statutory pre-suit requirements so that a lawsuit can thereafter be filed.. In very few cases have insurance carriers followed the spirit of the statute and attempted to resolve legitimate claims in good faith.

The moral of the story: should you or a loved one have been harmed as a result of suspected negligent medical treatment, contact an attorney who specializes in malpractice cases immediately or else risk losing forever the right to recover damages.