Florida medical malpractice law

You generally have two years to sue for medical malpractice in Florida. That clock starts at the incident, discovery, or when the incident should have been discovered. There's also an outer limit.

Seek advice soon. Florida requires an investigation and a medical expert's written opinion before you sue. Then comes a presuit notice period. To work out the filing date, you'll need more than the date of your hospital stay.

You'll find general information here, not legal advice. A Florida lawyer can look at your situation and explain which deadlines and presuit rules apply.

The deadline depends on discovery and the date of care

You'll find the medical malpractice statute of limitations in Florida Statutes § 95.11(5)(c). The discovery rule allows for a delay in recognizing an injury that wasn't apparent during treatment. The filing window still has an end.

You'll need two dates. One is when the incident happened; the other is when it was, or should have been, discovered. The statute of repose (the outer limit) starts at the incident. It can cut off your claim while the discovery-based clock still leaves time to sue.

The calculation can change with fraud or concealment, or with intentional misrepresentation that prevented discovery. The statute then allows two years from discovery. Even so, the limit is seven years after the incident. Late discovery isn't itself concealment. Your lawyer needs to check the facts before applying that exception.

Claims involving children

The four-year and seven-year limits don't apply if a claim is brought on a child's behalf on or before the child's eighth birthday. Only the outer limits are covered. Other deadline questions about your child's claim may still need an answer.

A Florida lawyer will need the treatment dates and your child's birth date. Have the lawyer explain how your child's protection and the discovery rule apply to those dates.

What Florida requires before a lawsuit

You must reasonably investigate before suing in Florida. The notice of intent needs corroboration: a qualified medical expert's verified written opinion, as required by Florida Statutes §§ 766.104 and 766.203. Give the lawyer your account. That opinion can't be replaced by your account, however useful.

Check the expert's qualifications, too. An expert offering an opinion against a physician in a specialty must work in the same specialty. Florida Statutes § 766.102 requires that match. The expert also needs work in that specialty within the three years before the incident, through practice, teaching or research. Have your lawyer explain the proposed reviewer's qualifying work.

Under Florida Statutes § 766.106, each prospective defendant must receive notice of intent to initiate litigation. Then comes the 90-day presuit investigation. During that period, you can't sue. Serving notice doesn't count as filing a complaint, either.

Use your first consultation to find out who may need notice and what the investigation still needs. The reviewer may better understand the treatment from a chart. Your own notes can point to dates you want the lawyer to examine.

Shared fault doesn't automatically bar the claim

Pure comparative fault still applies to medical negligence in Florida. The patient's share of responsibility can reduce recovery. Unlike a different fault rule, it doesn't automatically block recovery because the patient's share passes a threshold.

Medical negligence is excluded from Florida's 2023 change to a 51 percent bar. You'll find the different rule for these claims in Florida Statutes § 768.81(6). Tell your lawyer exactly what happened if a provider says your actions contributed to the injury.

Damage caps and limits on recovery

The non-economic damage caps in Florida Statutes § 766.118 aren't enforced in Florida. The Medical Professional Liability Association's State Enactments of Selected Medical Liability Reforms lists those caps as unconstitutional. That follows Estate of McCall v. United States in 2014 and North Broward Hospital District v. Kalitan in 2017.

You still can't count on a particular payment without an enforceable non-economic cap. Have a Florida lawyer check which rules govern total damages and punitive damages in your case.

A death claim has separate family restrictions

Certain damages aren't available to everyone under Florida's wrongful death law when medical negligence causes a death. Florida Statutes § 768.21(8) bars adult children age 25 and older from recovering for their own pain and suffering. Those damages are also unavailable to parents of an adult child.

This limits what you can recover without setting a dollar cap. After a family member's death, you can ask a lawyer how the restriction affects your claim. The lawyer will need to know how you were related to the person who died.

Some birth injuries follow a different route

For certain birth-related neurological injuries, Florida's NICA compensation plan provides coverage outside the courts. Florida Statutes §§ 766.301–766.316 govern the plan. Some birth injuries fall outside its coverage. A Florida lawyer can check whether NICA covers your child's injury before you decide whether to file a malpractice lawsuit.

What you can do now

Start by writing down dates. The date you received care comes first. Next comes the date you first learned that something might have gone wrong. If you can't remember a date, don't guess. Mark any dates you're uncertain about.

• Start with the medical records you already have. Your lawyer can tell you what else you'll need for the investigation.
• Put your questions about the filing deadline and presuit notice in writing. Ask your lawyer how one affects the other.
• Ask the lawyer to check NICA coverage for your child's birth injury first, before you discuss taking a claim to court.
• Your relationship to the patient who died is something the lawyer needs to know. The lawyer needs to know that relationship to explain the wrongful death restrictions.

Even with unanswered legal questions, you can request a review. Florida requires an investigation before you can sue. Your deadline belongs in that first conversation with the lawyer. What the qualified reviewer needs to examine your care is another question to ask.