Can I Sue My Doctor for Negligence in Florida?

Gregg Hollander | April 9, 2024 | Medical Malpractice

If your doctor has injured you through medical negligence, you have the right to file a medical malpractice lawsuit. Assuming that you win, the defendant almost always has the resources to pay 100% of the compensation you demand, either through insurance or personal resources. Florida medical malpractice claims can be challenging to win, however.

Florida’s Medical Malpractice Reform Law

The Florida legislature passed the Florida Comprehensive Medical Malpractice Reform Act, which places obstacles in the path of anyone who seeks to sue their doctor for negligence. You can do it, and you can win a strong claim, but Florida makes it difficult. 

The purpose of these obstacles is to discourage frivolous claims, promote settlement, and reduce the cost of medical treatment by reducing the cost of medical malpractice insurance.

The Florida Statute of Limitations and Its Exceptions

The statute of limitations sets a deadline for filing a medical malpractice lawsuit. If you miss the deadline, you will lose your claim forever. In Florida, the general statute of limitations deadline is two years after the malpractice occurred. Several exceptions apply under various circumstances.

The Discovery Rule Exception

Suppose, for example, that your surgeon accidentally left a medical instrument inside your body after your surgery. Further, suppose you don’t discover it until a year and a half later. Are you obligated to file a lawsuit within six months? No. 

The statute of limitations countdown doesn’t begin ticking until you discover or should have discovered the error. There is still an ultimate deadline, however, of four years after the malpractice occurred.

The Fraudulent Concealment Exception

Suppose your doctor “doctored” your medical records to keep you from finding out about their malpractice. In that case, the statute of limitations countdown doesn’t begin to run until you discover or should have discovered the fraud. 

Even then, however, there is an ultimate deadline to file a lawsuit – seven years after the malpractice occurred. The reason for this restriction is that evidence tends to decay after a few years.

Exception for Minors

The statute of limitations does not apply to a child if the lawsuit is filed on or before their eighth birthday. Of course, a child cannot file a lawsuit anyway, but their parent or legal guardian can file on their behalf.

The Notice and Affidavit of Merit Requirements

Before you can file a Florida medical malpractice lawsuit, you must notify the defendant in writing of your intent to file a lawsuit. Your notification must include enough information about the claim to allow the defendant to investigate it. It must also include a sworn affidavit by a qualified medical expert stating that your claim appears to have merit. If you don’t complete this step, any judge will reject your medical malpractice claim.

Filing the notification and affidavit of merit sets in motion a 90-day period of settlement with many ins and outs. The law can get confusing at this point, so it’s nothing you should try to handle on your own.

Florida’s Unconstitutional Damages Caps

If you browse the internet, you might find references to legal limitations on the amount of compensation that a Florida court can award in a medical malpractice case. These limitations are out of date. The Supreme Court of Florida has ruled that these limitations violate the Florida Constitution.

The Elements of a Florida Medical Malpractice Claim

To win your medical malpractice claim, you must prove all of the following facts:

1. The existence of a doctor-patient relationship. 
2. Your healthcare provider owed you a specific duty of care (to order a C-section at a certain point in your delivery, for example).
3. Your healthcare provider breached their duty. 
4. You suffered physical harm. A “good scare” is not enough. 
5. Your healthcare provider’s breach of duty was the foreseeable cause of your harm.

Remember that it’s a lot easier to prove a medical malpractice claim than to prove a criminal charge such as manslaughter. That is because the standard of proof is different.

Expert Witnesses

You almost always need at least one expert witness to win a medical malpractice claim. Your expert witness can testify in court or at a deposition, and they can help you understand your claim. 

You probably don’t need to worry about finding a doctor willing to testify against another doctor. The expert witness industry is well-developed. It includes many professional expert witnesses who no longer practice medicine and, therefore, have little concern about their unpopularity in the medical profession.

Yes, You Need a Lawyer To Pursue a Florida Medical Malpractice Claim

It’s not a legal requirement to hire a lawyer, but it is a practical necessity, given the obstacles that Florida claimants face. Fortunately, nearly all Florida medical malpractice lawyers charge their legal fees using the contingency fee method. This means that you pay nothing unless you win money damages.

Contact Our Medical Malpractice Law Firm in South Florida

If you’ve been injured in an accident, please contact our experienced personal injury lawyers in Florida at Hollander Law Firm Accident Injury Lawyers to schedule a free consultation today. We have three convenient locations in Boca Raton, Fort Lauderdale, and West Palm Beach.

We proudly serve Palm Beach County, Broward County, and its surrounding areas:

Hollander Law Firm Accident Injury Lawyers – Boca Raton Law Office
7000 W Palmetto Park Rd #500
Boca Raton, FL 33433
(561) 347-7770

Hollander Law Firm Accident Injury Lawyers – Fort Lauderdale Law Office
200 S.E. 6th Street #203
Fort Lauderdale, FL 33301
(954) 287-0566

Hollander Law Firm Accident Injury Lawyers – West Palm Beach Law Office
319 Clematis St #203
West Palm Beach, FL 33401
(561) 556-7873