Medical Malpractice Cases:
Medical malpractice is negligence by a healthcare provider which causes injury. Those bringing suit have the additional burden on the injured party or their estate in the case of death, of showing by a greater weight of the evidence that the healthcare provider breached the prevailing professional standard of care. Those individuals who may bring such cases are limited. Individuals who may recover in such cases is limited. The time limitations within which you can bring a case are shorter than ordinary negligence cases. Medical malpractice cases are expensive as it relates to the costs that will be incurred to bring the lawsuit.
This is why most law firms, including The SOUD Law firm, will have certain minimum criteria for accepting malpractice cases. It does not cost anything to ask if you have a case and we encourage you to contact us.
What Follows is a partial outline on the subject that I wrote for a seminar teaching young lawyers the basics in personal injury cases.
1) Medical Malpractice – Florida’s Medical Malpractice Act- FS §766
a) Tallahassee: Comprehensive legislation has been enacted to govern this cause of action and can be found at Fla. Stat. Ch §766. Its beginnings were in 1985 as a response to a perceived “crisis” and the Act is an effort to encourage pretrial settlement of meritorious claims. The Act has been amended numerous times.
b) Medical Malpractice can be defined as negligence by act or omission by a health care provider whose care and/or treatment falls below the “standard of care” accepted by the medical community.
i) Elements of a Cause of Action
(a) A duty of care owed by the health care provider to the injured party;
(b) Breach of that duty by failure to abide by the appropriate standard of care;
(c) Causal connection between the breach and the patient’s injury or death;
c) Health care Providers Subject To The Act. Note however, while other sections of the Act contain a definition for “Health care Provider” and can be found at §766.1115(3)(d) and §766.105(1)(b), there are general rules of statutory construction typically applied by Courts. Where sections of the Act provide redundant or different definitions, the Courts will interpret that specific section of the act consistent the definition provided in that specific section. The Courts should not reach to other definitions in the act to either broaden or narrow the definition of Health care Provider. Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla.5th DCA 1995).
- Health care Provider defined at §766.102(1), referring to the definition found at §766.202(4):
ii. Ambulatory surgical center
iii. Mobile surgical facility
iv. Birth center
v. MD Physicians (ch 458)
vi. DO Physicians (ch 459)
vii. Chiropractic Physicians (ch 460)
viii. Podiatric (foot) Physicians (ch 461)
ix. Naturopathic (Alternative/Holistic) (ch 462)
x. Optometry (ch 463)
xi. Nurses (ch 464)
xii. Dentist (ch 466)
xiii. Midwife (ch 467)
xiv. Orthotics fitter (medical devices), Prosthetics fitter (artificial limbs) and Pedorthics fitters (therapeutic shoes) (Part 14 of ch 468
xv. Laboratories (ch 483)
xvi. HMO (Health Maintenance Organizations) (Part 1, ch 641)
xvii. Blood bank
xviii. Plasma center
xix. Industrial clinic
xx. Renal Dialysis facility
xxi. Business Entity of any of the above
d) Pre-suit Investigation and Notice Requirements – Conditions Precedent. Prior to Filing Suit for Medical Malpractice…
(a) Plaintiff’s Responsibilities are to Review, Consult and Written Opinion.
Plaintiff must determine if “reasonable grounds” exists that:
(i) are and treatment by health care provider was negligent; (FS. §766.203(2)(a)) and
(ii) The negligence caused Plaintiff injuries; (FS. §766.203(2)(b))
(iii) Plaintiff obtains a verified written opinion from a medical expert; (FS §766.203(2) and
(iv) Plaintiff notify prospective defendant(s) by mail (Cert./RRR) of intension to initiate litigation sometime after 90 days. (FS. §766.106(2)(a))
(b) Defendant must also conduct a pre-suit investigation and has 90 days to complete. (FS §766.106(3)(a)), §766.203(3)).
Defendant must promptly investigate, review and evaluate the claims of Plaintiff, including one or more of the following:
(i) Claims Adjuster review done internally by the insurance company;
(ii) Panel review by 3 individuals who are: a qualified med mal attorney, a knowledgeable health care provider of similar experience as potential defendant and a claims adjuster.
(iii) Medical Review Committee offered by state or local professional society.
(iv) Any other similar procedure above as above.
(c) Informal pre-suit discovery authorized pursuant to §766.106(5)-(7), §766.204 and §766.205 – Each party must provided reasonable access to information in their possession or control.