When to sue for medical malpractice?
When to sue for medical malpractice: as soon as possible and before the statutes of limitation and repose.
I’ve been asked when to sue for medical malpractice in Florida. For a righteous case, the short answer for when to file a medical malpractice case is as soon as possible under the law, and before the applicable statutes of limitation and repose expire.
Florida has three relevant time bars. There is a two-year statute of limitations for medical malpractice causes of action, a four-year statute of repose, and a seven-year maximum for cases that involve fraud, concealment, or intentional misrepresentation by a prospective defendant. Fla. Stat. §95.11(4)(b). The SOL begins to run “from the time the incident is discovered, or should have been discovered with the exercise of due diligence.” Id. The SOR runs from the time the cause of action accrued, no matter what the plaintiff knew or should have known.
The only exception to these three time bars is when the claimant is a minor who is eight or younger, in which case the four-year and seven-year periods do not bar an action brought before the child’s eighth birthday. Id.
Using 766.104(2) of the Florida Statutes, you can buy 90 more days on a medical malpractice case’s SOL and SOR. This petition should be filed with the Clerk of Court where you will file your lawsuit. If you believe the suit may be filed in multiple venues, you can file in multiple venues. The Petition costs about $42. Once the payment is received and the petition is filed, an automatic 90-day extension of the statute of limitations shall be granted.
These time bars are not always clear. Even experienced medical malpractice lawyers face difficult factual analysis where reasonable minds can disagree. To minimize the risk, speed in filing medical malpractice cases is almost always better. But unlike many personal injury lawsuits, suing for medical malpractice in Florida requires meeting a complex set of legal requirements before filing a lawsuit. The rest of this article discusses a few of these challenges to filing.
Is It Medical Malpractice?
First, it is always important to pause and confirm the case is truly one of medical malpractice under Chapter 766.
A prospective defendant must first be a healthcare provider, which I define in my article on The Complete List of “Healthcare Providers” under The Florida Medical Malpractice Act.
Second, the claim must be for medical malpractice, not for simple negligence. "[A] wrongful act occurs in a medical setting does not necessarily mean that it involves medical malpractice." The National Deaf Academy v. Townes, 242 So. 3d 303, 310 (Fla. 2018). The Florida Supreme Court has held “that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. This inquiry involves determining whether proving the claim requires the plaintiff to establish that the allegedly negligent act "represented a breach of the prevailing professional standard of care," as testified to by a qualified medical expert.” Id. at 311-312.
Meeting the requirements of Chapter 766 to bring a medical malpractice claim.
For medical malpractice lawsuits in Florida, counsel must navigate the maze of laws contained in Chapter 766 of the Florida Statutes.
As a first principle, a medical malpractice lawsuit cannot be filed until after “the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Florida Statute 766.104. Even then, the suit cannot be filed until a notice of intent to sue is sent to the prospective defendants and 90 days passes. Florida Statute 766.106.
What is a reasonable investigation? That is defined in Florida Statute 766.203(2). Before sending a notice of intent to sue, “the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) Such negligence resulted in injury to the claimant.”
Can an experienced medical malpractice lawyer make that determination without medical expert testimony? No. The law requires “[c]orroboration of reasonable grounds to initiate medical negligence litigation” with a “verified written medical expert opinion from a medical expert as defined in s. 766.202(6).”
As such, it is important to contact a medical malpractice attorney as soon as possible to begin the investigation process. With a shorter window to file a lawsuit than a typical negligence case and a more demanding investigation process, consulting an attorney as early as possible will maximize the chance that your prospective case will get the full investigation it deserves.
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I’m a licensed attorney in Florida. I provide legal advice, but only to my clients — people who have a written agreement with me. I don’t provide legal advice through this site.
The articles you see here — or anywhere else online — aren’t any different from reading a newspaper or magazine article by a lawyer, or watching a lawyer on a television show talk about a case. I might write about legal issues relevant to your situation, but professional legal advice requires an in-depth discussion with you about your case, a thorough investigation into all the relevant facts, and substantial research into the relevant laws.