If you think you might have a valid claim for medical malpractice in Florida, a few keys to keep in mind are the deadlines for filing a lawsuit in court, and the procedural prerequisites for doing so. Read on to learn more about Florida laws that affect medical malpractice claims, including the current status of the state's cap on certain damages in these kinds of cases.
A number of laws are likely to come into play in a medical malpractice case.
A "statute of limitations" is a state law that sets a deadline by which the person suing (the plaintiff) must file a lawsuit against a health care provider whose medical negligence led to injury.
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 damages 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.
Let's look at how these rules work in Florida.
In Florida, you must start a medical malpractice 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 medical negligence, i.e. intentionally deceiving you so you don’t discover what really happened. 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 basics of the Florida medical malpractice statute of limitations can be found at Fla. Stat. Ann. § 95.11.
In Florida, you are required to serve notice of intent to sue on the health care provider before you can file your case in court, which includes an affidavit of merit from a medical professional stating that you have a valid medical malpractice claim. Learn more about when it's medical malpractice, and when it isn't.
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 period to sue, whichever affords you the longer stretch 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 the deadline has already passed.
Florida statutes authorize different caps on damages in medical malpractice lawsuits, including a $500,000 cap on non-economic damages (which includes compensation for "pain and suffering") in medical malpractice lawsuits against most health care practitioners, and a $1,000,000 cap on non-economic damages if the malpractice resulted in death or a vegetative state. (Fla. Stat. Ann. § 766.118.) But in June 2017, the Florida Supreme Court ruled that these caps "arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries," and struck down any statutory limits on non-economic damages in medical malpractice lawsuits, holding that they are unconstitutional.
To understand how Florida's medical malpractice laws apply to your potential case, your best first step might be discussing your situation with an attorney. Learn more about meeting and working with a medical malpractice lawyer.