The process of discovery is key to personal injury and medical practice cases. It provides both parties with the information and evidence necessary for the case to proceed. This is often done by making requests for admissions and depositions, production of documents, and answers to interrogatories. Discovery allows the parties to investigate each other’s claims and shapes the case itself.
Medical malpractice cases, like many other cases based on negligence, are subject to a statute of limitations, or rather, a window of opportunity by which you have to file your lawsuit after the injury occurred. However, with medical malpractice, victims often may not immediately realize that negligence, resulting in their injury, has occurred, either because the resulting condition takes time to develop, the negligence claim may be based on a failure to diagnose, or similar scenarios. States like Florida allow extra time for the discovery of medical malpractice before the statute of limitations starts ticking precisely to account for these instances. This is known as the “discovery rule.”
State Statute of Limitations for Malpractice
According to Florida state law, an action for medical malpractice is defined as “claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.”
Under Florida’s statute of limitations, an action for professional malpractice runs from the time the cause of the action is discovered or should have been discovered (with due diligence). However, to provide for some buffer due to the sensitive (and sometimes slow-to-develop) nature of medical issues that are the result of medical negligence, state law provides that, although an action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred, in no event shall the action be commenced later than four years from the date of the incident or occurrence which gave rise to the action.
However, the courts are more flexible in some circumstances. In the instance where it can be shown that the health care provider is guilty of fraud, concealment, or intentional misrepresentation which prevented the discovery of the injury, there is a two-year extension added onto the period of limitations from the time that the injury is discovered or should have been discovered, not to exceed seven years from the date of the incident giving rise to the injury.
What Does This Mean?
According to the discovery rule, in Florida, the clock starts when the victim had notice of the negligent act or notice of the injury that resulted from the negligent act. This does not mean the date when the victim realized the injury was definitely caused by the malpractice, but rather, when the victim knows of the injury itself. And the courts have been very strict about the four-year statute of repose; even if it means victims could find themselves without a legal remedy as a result.
Other Florida Medical Malpractice Laws
Florida state law also governs the burden of proof in actions for recovery of damages based on the death or personal injury (where it is alleged that the death or injury resulted from medical malpractice). The claimant (victim) has the burden of proof in providing evidence that the health care provider breached the relevant professional standard of care, where that standard is defined as the level of care, skill, and treatment which is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
This is typically established by expert witnesses who are health care providers with active and valid licenses, and who not only specialize in the same specific area as the health care provider being accused of negligence, but have also devoted professional time during the three years immediately preceding the action that gave rise to the malpractice via clinic practice, instruction of students in an accredited health professional school or residency program in the practice of medicine, or a clinical research program that is affiliated with an accredited medical school or teaching hospital in the practice of medicine.
In addition, state law governs determinations of noneconomic damages (non-financial losses that occurred but due to the action that caused the injury, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, etc.) recoverable with respect to a cause of action for personal injury arising from medical malpractice/negligence. Florida places a cap of $500,000 per claimant and practitioner.
However, if the negligence resulted in a permanent vegetative state or death, that cap is raised to $1 million, regardless of the number of claimants involved. The courts can also raise the cap to $1 million in cases that did not result in death or a vegetative state if the court determines that an injustice would otherwise occur or in the case of a catastrophic injury, such as permanent impairment via a spinal cord injury, limb amputation, severe brain injury, and several other conditions.
Don’t Wait! – Get Legal Help
If you have been injured, or a loved one has been killed, and you think you may have a lawsuit against the responsible party, do not wait to pursue your claim. If the statute of limitations has expired, you may have forfeited your ability to bring a lawsuit and obtain compensation. You should consult an attorney experienced in personal injury as soon as possible.