Why are Florida Medical Malpractice Cases Different than Ordinary Negligence Actions?

There are several laws that govern medical negligence cases exclusively, making medical malpractices cases far different than ordinary negligence cases.  Here are just a few.

Statue of Limitations.  First, the statute of limitations governing medical malpractice cases is different than the statute of limitations for other negligence actions.  This is a critical distinction as claims and lawsuits could be barred by law if not brought within the applicable statute of limitations. Generally speaking, the statute of limitations in Florida for ordinary negligence claims is four (4) years while the statute of limitations for Florida medical malpractice claims is two (2) years.   That said, calculating the statute of limitations for any case, especially a medical malpractice case, can be more difficult than it seems. Anyone interested in knowing how to calculate or determine the statute of limitations for any case should consult a legal professional. (this article is not intended to provide legal advice) Fla. Stat. § 95.11(4) lays out the statute of limitations for Florida medical malpractice cases and states:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. This paragraph shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.

The statute of limitations for medical malpractice cases is much shorter than for other types of negligence actions.  So, anyone considering filing a medical malpractice action should consult with a Florida medical malpractice attorney as soon as possible.  Something to keep in mind is that it may take a medical malpractice attorney many weeks or months to evaluate a case and decide whether it is worth pursing.  This is because an attorney may have to request and obtain pertinent medical records, spend considerable time reviewing those medical records, and may have to have your medical records reviewed by a doctor or other medical professional before deciding whether a case can be pursued.  Your attorney may also have to conduct extensive legal or medical research while evaluating your case to determine whether there is a claim that can be made. If you are interested in pursuing a medical malpractice claim, the sooner you see an attorney the better.

Presuit.  There is an extensive statutory scheme governing “presuit” in Florida medical malpractice cases. Other negligence actions in Florida do not require presuit.  What is presuit? Generally speaking, it is a 90-day period when the parties exchange information and explore the possibility of settling or resolving a medical malpractice case.  Florida law imposes on all parties many statutory requirements that must be strictly complied with during this presuit period. Failure to follow the various statutes that govern presuit can jeopardize one’s ability to file an actual medical malpractice lawsuit.  Again, it is critical to find a lawyer very familiar with these medical malpractice statutes so as to avoid the various pitfalls that can easily be made during the 90-day persuit period.

With few exceptions, attorneys can usually file a negligence lawsuit without satisfying any prerequisites.  For Florida medical malpractice cases, however, injured parties are required to participate in presuit before they are allowed to file a medical malpractice case.  In turn, this adds time and expense to malpractice actions. Also, before a party can even begin the presuit period, the claimant must obtain a verified medical opinion from a medical expert stating that there is evidence of medical negligence and reasonable grounds to believe that the care and treatment provided to the claimant fell below the prevailing professional standard of care and that such negligence caused or substantially contributed to claimant’s injury or death.