How to Qualify for a Medical Malpractice Claim in Florida

by | May 8, 2024 | Simmons Law Group

Medical malpractice can have devastating effects on individuals and families. Understanding how to qualify for a medical malpractice claim in Florida is essential for those seeking justice and compensation. This comprehensive guide will walk you through the necessary steps and requirements to file a successful claim.

Understanding Medical Malpractice

Negligence vs. Malpractice

Medical malpractice occurs when a healthcare professional provides care that falls below the accepted standard, causing harm to the patient. Common examples include:

  • Failure to diagnose
  • Misdiagnosis
  • Unnecessary surgery
  • Surgical errors
  • Improper medication dosage
  • Poor follow-up care
  • Disregarding relevant patient history

Elements of a Medical Malpractice Claim

To qualify for a medical malpractice claim in Florida, you must establish the following elements:

  1. Duty of Care: The healthcare professional has a duty to provide care to the patient.
  2. Breach of Duty: The healthcare professional breached this duty by failing to meet the accepted standard of care.
  3. Causation: The breach of duty caused harm or injury to the patient.
  4. Damages: The patient suffered damages as a result of the injury.

Steps to Qualify for a Medical Malpractice Claim in Florida

Winning Medical Malpractice

1. Obtain Medical Records

Start by collecting all relevant medical records. These records will provide evidence of the treatment received and the harm caused.

  • Request records from all healthcare providers involved in the treatment.
  • Review records for any inconsistencies or errors.

2. Consult a Medical Malpractice Attorney

Seek the advice of an experienced medical malpractice attorney. They can help you understand your rights and evaluate the strength of your case.

  • Schedule a consultation to discuss the details of your situation.
  • Provide all medical records and relevant information to the attorney.

3. Obtain a Medical Expert’s Opinion

Florida law requires a medical expert to review your case and provide a sworn affidavit stating that malpractice occurred.

  • Find a qualified medical expert who can review your records.
  • Obtain the expert’s opinion to support your claim.

4. File a Notice of Intent

Before filing a lawsuit, you must notify the healthcare provider of your intent to sue. This notice includes:

  • A detailed description of the alleged malpractice.
  • The medical expert’s affidavit.

5. Participate in the Pre-Suit Investigation

After filing the notice of intent, there is a 90-day pre-suit investigation period during which both parties can investigate the claim.

  • Cooperate with the investigation by providing the requested information.
  • Consider settlement offers that may arise during this period.

Types of Damages in Medical Malpractice Claims

Type of Medical Malpractice

If you qualify for a medical malpractice claim, you may be entitled to various types of damages, including:

  • Economic damages: Medical bills, lost wages, and other financial losses.
  • Non-economic damages: Pain and suffering, emotional distress, and loss of enjoyment of life.
  • Punitive damages: In cases of gross negligence or intentional harm, punitive damages may be awarded.

Common Challenges in Medical Malpractice Claims

Medical malpractice claims can be complex and challenging. Some common obstacles include:

  • Statute of Limitations: In Florida, you must file your claim within two years of discovering the injury but no later than four years from the date of the malpractice.
  • Comparative Negligence: If the patient is found partially at fault, their compensation may be reduced.
  • Expert Testimony: Obtaining credible and supportive expert testimony is crucial for the success of your claim.

Tips for a Successful Medical Malpractice Claim

  • Act promptly: Don’t delay in seeking legal advice and filing your claim.
  • Document everything: Keep detailed records of all interactions with healthcare providers and the effects of the injury.
  • Follow legal procedures: Ensure all legal requirements and deadlines are met.

Key Considerations for Filing a Medical Malpractice Claim in Florida

When pursuing a medical malpractice claim in Florida, it’s essential to be aware of several key considerations that can impact the success of your case.

Understanding the Standard of Care

The standard of care refers to the level and type of care an average, prudent healthcare professional with similar training and experience would provide under similar circumstances. To qualify for a medical malpractice claim in Florida, you must demonstrate that the healthcare provider’s actions deviated from this standard.

Medical Malpractice

Factors Influencing Standard of Care:

  • Specialization: Specialists are held to a higher standard within their specific field.
  • Geographic Location: Standards can vary slightly based on regional medical practices.
  • Patient Condition: The unique circumstances of the patient’s health can affect the expected standard of care.

The Role of Informed Consent

Informed consent is a crucial aspect of medical treatment. Healthcare providers are required to inform patients about the potential risks, benefits, and alternatives of a proposed treatment or procedure. Failure to obtain informed consent can be grounds for a medical malpractice claim if the patient suffers harm as a result.

Elements of Informed Consent:

  • Disclosure: The healthcare provider must fully disclose all relevant information.
  • Understanding: The patient must understand the information provided.
  • Voluntariness: The patient must voluntarily agree to the treatment.

Statutory Caps on Damages

Florida law imposes caps on non-economic damages in medical malpractice cases. Non-economic damages include compensation for pain and suffering, emotional distress, and loss of enjoyment of life. Understanding these caps is crucial for setting realistic expectations for your claim.

Current Caps on Non-Economic Damages:

  • Practitioner Cases: $500,000 per claimant.
  • Non-Practitioner Cases: $750,000 per claimant.

Preparing Your Case: Gathering Evidence and Documentation

The strength of your medical malpractice claim heavily relies on the quality and comprehensiveness of the evidence you gather. Here are key steps to ensure your case is well-supported:

Medical Records and Documentation

Your medical records are the foundation of your claim. They provide a detailed account of your medical history, treatments received, and the alleged malpractice.

Steps to Secure Medical Records:

  • Request Copies: Obtain copies of all relevant medical records from healthcare providers.
  • Organize Documents: Keep records organized chronologically for easy reference.
  • Include All Relevant Information: Ensure you have records from all healthcare providers involved in your treatment.

Witness Testimonies

Witness testimonies can strengthen your case by providing additional perspectives and corroborating your claims.

Types of Witnesses:

  • Medical Experts: Provide professional opinions on the standard of care and deviations.
  • Family Members and Friends: Can testify about the impact of the injury on your daily life.
  • Healthcare Staff: This may offer insights into the treatment and interactions with the healthcare provider.

Navigating the Legal Process

Understanding the legal process and preparing adequately can significantly influence the outcome of your medical malpractice claim.

Initial Consultation with an Attorney

During your initial consultation, provide your attorney with all relevant information and documentation. This meeting helps set the groundwork for your case.

Key Topics to Discuss:

  • Details of the Alleged Malpractice: Provide a comprehensive account of the incident.
  • Medical History: Share your medical history and current condition.
  • Damages Suffered: Discuss the malpractice’s physical, emotional, and financial impact.

Filing the Lawsuit

Your attorney will file the lawsuit if the case is unresolved after the pre-suit investigation and notice period.

Steps Involved:

  • Drafting the Complaint: The attorney drafts a detailed complaint outlining the allegations.
  • Filing with the Court: The complaint is filed in the appropriate Florida court.
  • Serving the Defendant: The healthcare provider is formally notified of the lawsuit.

Trial and Resolution

If your case proceeds to trial, it will be heard before a judge or jury. Your attorney will present evidence, call witnesses, and make arguments to support your claim.

Trial Phases:

  1. Opening Statements: Both sides present an overview of their case.
  2. Presentation of Evidence: Witnesses testify, and evidence is presented.
  3. Closing Arguments: Attorneys summarize the evidence and make final arguments.
  4. Verdict: The judge or jury delivers a verdict based on the evidence presented.

Post-Trial Considerations

After the trial, there may be additional steps depending on the outcome.


If the verdict is not in your favor, you may have the option to appeal. Discuss the possibility and implications of an appeal with your attorney.

Appeal Considerations:

  • Grounds for Appeal: Identify legal errors that may have affected the trial’s outcome.
  • Time Limits: Be aware of the deadlines for filing an appeal.

Collecting Damages

If you win your case, the next step is collecting the awarded damages. This process can sometimes involve negotiations and additional legal steps.

Collecting Process:

  • Insurance Payments: Damages may be paid by the healthcare provider’s insurance.
  • Structured Settlements: In some cases, structured settlements pay damages over time.

Preventing Medical Malpractice

While pursuing a claim is crucial for justice and compensation, preventing medical malpractice is equally important. Here are some tips to help you avoid becoming a victim of medical malpractice:

Being an Informed Patient

  • Ask Questions: Ask your healthcare provider about your diagnosis, treatment options, and potential risks.
  • Research: Educate yourself about your condition and the proposed treatments.
  • Second Opinions: Seek a second opinion if you have doubts about your diagnosis or treatment plan.

Building a Trusting Relationship with Your Healthcare Provider

  • Communication: Maintain open and honest communication with your healthcare provider.
  • Follow-Up: Attend all follow-up appointments and promptly report any new or worsening symptoms.
  • Advocacy: Don’t be afraid to advocate for yourself or bring a trusted friend or family member to appointments for support.


Filing a medical malpractice claim in Florida requires a thorough understanding of the legal requirements, diligent preparation, and expert legal guidance. By following the steps outlined in this guide, you can navigate the complexities of the legal system and work towards achieving the justice and compensation you deserve.

If you believe you have been a victim of medical malpractice, don’t delay in seeking legal advice. Contact an experienced medical malpractice attorney to discuss your case and explore your options. Your health and well-being are paramount, and holding negligent healthcare providers accountable is essential for your recovery and future protection.

Frequently Asked Questions (FAQs)

Q: What is medical malpractice?

A: Medical malpractice occurs when a healthcare professional provides care that falls below the accepted standard, harming the patient.

Q: How do I know if I have a medical malpractice case?

A: To have a valid medical malpractice case, you must prove that the healthcare provider breached their duty of care, causing you harm and resulting in damages.

Q: What is the statute of limitations for filing a medical malpractice claim in Florida?

A: The statute of limitations in Florida is two years from the date you discovered the injury but no later than four years from the date of the malpractice.

Q: Can I sue a government-employed healthcare provider for medical malpractice?

A: You can sue government-employed healthcare providers, but specific procedures and shorter deadlines exist for filing claims against government entities.

Q: What types of damages can I recover in a medical malpractice claim?

A: You can recover economic damages (e.g., medical bills, lost wages), non-economic damages (e.g., pain and suffering), and, in some cases, punitive damages.

Q: How important is expert testimony in a medical malpractice case?

A: Expert testimony is crucial. A qualified medical expert must review your case and provide an affidavit supporting your claim.

Q: What should I do if I can’t afford a medical malpractice attorney?

A: Many medical malpractice attorneys work on a contingency fee basis, meaning they only get paid if you win your case.

By being proactive and informed, you can better protect yourself from medical malpractice and ensure that you receive the justice and compensation you deserve if you become a victim.

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