If you think that you might have a valid claim for medical malpractice in Florida, a few keys to keep in mind are the deadlines for filing your case, and the limits on how much an injured patient can win in a successful lawsuit. Read on to learn more about Florida laws that affect medical malpractice cases.
General Note on Medical Malpractice Statutes of Limitations and Award Limits
The “statute of limitations” is a deadline -- imposed by state law -- before which the person suing (the plaintiff) must file a medical malpractice lawsuit against a health care provider.
To make matters more complicated, there are often special requirements a plaintiff has to fulfill before he or she can sue for medical malpractice. Failure to take the proper steps could postpone when the suit can be filed and could cause the plaintiff to miss the statute of limitations deadline. Finally, it can often be difficult to determine when the clock started running and what the deadline actually is.
Medical malpractice damage awards -- in other words, how much money an injured plaintiff can receive in a lawsuit -- are also limited or “capped” in some states. Both the strict statute of limitations and the damage caps are the result of states’ efforts to lower the cost of medical malpractice liability insurance.
The rules affecting all of these issues in Florida are discussed below.
The Basic Medical Malpractice Statute of Limitations in Florida is Two Years from Discovering the Injury or Four Years from When Malpractice Occurred
In Florida, you must start the lawsuit within two years of discovering the injury (or when you should have discovered the injury) or, at the latest, four years from when the malpractice occurred. In other words, even if you couldn’t have discovered the injury within four years, the case will be thrown out if you sue the health care provider more than four years after he or she caused the injury.
The only exception is for the care provider’s fraudulent concealment of the malpractice, i.e. intentionally deceiving you so you don’t discover the malpractice. In that event, the statute of limitations is two years from when the injury was finally discovered or seven years from when the malpractice occurred.
The statute of limitations does not apply to a minor if the case is started on or before his or her eighth birthday.
The basic laws for Florida Medical Malpractice Statute of Limitations can be found at Fla. Stat. Ann. § 95.11.
Effect of Pre-Suit Requirements on Statute of Limitations
In Florida, you are required to serve a notice of intent to sue on the health care provider before you can sue in court, which includes an affidavit from a medical professional stating that you have a valid medical malpractice claim.
This notice sets in motion a complicated settlement process that lasts 90 days. During those 90 days, the statute of limitations is tolled. If the health care provider indicates earlier than 90 days that it does not wish to settle, then you have 60 days or the remainder of the statute of limitations to sue, whichever is the longer period of time. You can also get an extra 90 days if you file for an “investigation period” to find a medical expert to investigate your case. However, you cannot extend the statute of limitations with an investigation period if it has already expired.
Florida Damage Caps Generally Limit Non-Economic Recovery in Med Mal Cases
Florida utilizes different caps for “medical practitioner” defendants (i.e. an individual doctor) versus “non-practitioner” defendants (i.e. a corporate health care entity). There is a $500,000 cap on non-economic damages in medical malpractice lawsuits against practitioners, while the cap jumps up to $750,000 in lawsuits against non-practitioner defendants.
These caps apply to the total amount a defendant is required to pay out in the case, regardless of the number of plaintiffs, and the total amount any plaintiff can receive, regardless of the number of defendants.
The cap goes up to $1,000,000 if the malpractice resulted in death or a vegetative state. A court can override the cap and award up to $1,000,000 to an individual plaintiff if the injury is catastrophic and the circumstances of the case would make it unjust to apply the standard damage case. Other damage cap rules apply to hospitals and emergency care providers.
The basic laws for Florida Medical Malpractice Damage Caps can be found at Fla. Stat. Ann. § 766.118.