Common Questions About Florida Medical Malpractice Claims

On Behalf of | Feb 17, 2020 | Medical Malpractice

When we go to the doctor or seek medical treatment, we expect that the healthcare provider will give us his undivided attention and treat us in a competent manner. Too often, this is not the case — and patients suffer as a result. Missed diagnoses, wrong diagnoses, surgical errors and other problems can lead to serious or even fatal complications.

If you or a loved one has been injured because a medical professional failed to provide appropriate medical care, a lawsuit can help you recover compensation for the losses that you have suffered. While money won’t make you whole again, it can help you as you move forward with your life. A skilled Miami medical malpractice attorney can help you through the process, from explaining your options during a free initial consultation to resolving your case through a settlement or at trial.

The law in Florida medical malpractice claims can be confusing. Below, we have answered some of the most commonly asked questions about this type of lawsuit.

Do I Need a Medical Malpractice Lawyer If I Already Have a Settlement Offer?

If you have been harmed through medical malpractice, although highly unlikely, you may have received a settlement offer from the hospitals risk management division and/or  insurance company. It may be tempting to accept this offer so that you can move forward with your life and regain financial stability. Doing so could leave you with far less compensation then you require to cover your losses.

It is important to remember that insurance companies are in the business of making money.  The goal of the insurance adjuster handling your claim is not to make sure that you get the most money for your medical malpractice case. Their job is to pay you as little as possible to make the claim go away.

The first offer from an insurance company — particularly to a person who is not represented by a Florida medical malpractice attorney — is usually far below the actual amount of your damages. If you accept this offer, then you may find yourself without enough money to cover your medical bills, lost wages, or other damages, such as reduced earning capacity. This is particularly true if you are still being treated for your injuries.

A skilled Florida medical malpractice attorney will advocate for your right to fair compensation, ensuring that the full scope of your damages are addressed by a settlement agreement.  If the insurance company isn’t willing to settle for what you deserve, your lawyer can file a lawsuit, which forces the insurance company to decide if it is better to spend money defending the claim in court or to simply pay you what you are owed.  In this way, having an attorney will help most victims of medical malpractice get a substantially higher settlement offer than what they would receive if they were not represented by counsel.

How Do You Prove Medical Malpractice Under Florida Law?

There are many situations when you may not be happy with the results of your medical treatment or a procedure. You may even experience an adverse outcome. While this can be incredibly dispiriting, having a bad or undesired result does not necessarily mean that your treating provider committed medical malpractice.

Instead, to demonstrate that a provider committed medical malpractice, you must meet the below criteria:


  • A doctor-patient relationship was established;
  • There is a duty or standard of care for the diagnosis or treatment of your condition;
  • The medical professional breached the duty of care;
  • This breach was the “but for” cause of your injury (i.e., but for the breach of the duty of care, you would not have been injured); and
  • The injury caused damages.


These elements are proven through your medical records, opinions from medical experts, and other forms of evidence.

Can You File a Florida Medical Malpractice Lawsuit If You Signed a Consent to Treatment?

Yes. When you sign a consent to treatment, you are not waiving your right to file a lawsuit. If the medical professional acted negligently (breached the standard of care), then you may be able to recover compensation for your injuries.

Will My Case Go to Trial?

There is always a possibility that when you file a personal injury lawsuit, such as a medical malpractice claim, you will have to go to trial. The prospect can be stressful for anyone who is already struggling to recover from an injury. Fortunately, the majority of medical malpractice cases settle before trial.

According to a study from the United States Department of Justice, Bureau of Justice Statistics, just 6.9% of medical malpractice claims resulted in a verdict at trial. In other words, 93% of medical malpractice cases studied were resolved before trial.

While there is a relatively low chance that your case will go to trial, it is important to hire a Miami medical malpractice attorney who isn’t afraid to take your case to trial. You need a lawyer with a track record of success — so that the insurance companies know that you won’t accept a bad settlement offer to avoid litigation. A law firm that has achieved high-value medical malpractice awards and settlements will be able to advocate fiercely for your rights.

What Damages Can You Recover in a Medical Malpractice Claim?

If you have been injured by the negligence of a physician, surgeon, or other medical professional you may be entitled to compensation for your losses. There are two primary types of damages that may be available to you in a Florida medical malpractice case: economic and non-economic damages.

Economic damages include compensation for any type of loss that is relatively easy to quantify. This may include past and future medical bills, lost wages, reduced earning capacity, and related expenses, such as home healthcare costs and medical equipment.

Non-economic damages include those losses that are harder to put a number on, such as pain and suffering or emotional duress. These damages may also include things like loss of enjoyment of life and disfigurement or scarring. Importantly, in 2017, the Florida Supreme Court ruled that a Florida cap on non-economic damages in medical malpractice cases was unconstitutional; as a result, there are no limits on the amount of non-economic damages that you can recover.

Can You Recover Damages If You’re Partially at Fault?

Yes. Florida has what is known as a “pure comparative fault” system. This means that even if your own negligence caused or contributed to your injuries, you can still recover for your losses. Your damages will simply be reduced by the percentage that you are at fault.

For example, if your doctor instructed you to follow up with a specialist after missing a cancer diagnosis, and you failed to do so, the progression of your cancer may be partially your fault. However, the doctor may still be responsible for missing your diagnosis, so you can file a claim against them for your injuries. If you are awarded $100,000 at trial and the jury finds that you were 20% at fault, then your recovery will be reduced by 20% to $80,000.

How Long Do You Have to File a Medical Malpractice Lawsuit?

In the legal world, there are time limits for filing lawsuits and other types of legal claims. These limits are known as the statute of limitations. For medical malpractice claims, you must file a claim within two years of the injury or two years from when you should have discovered the injury.

This means that the clock starts ticking either (1) when the malpractice occurred; or (2) when you discover the malpractice. For example, if a surgeon leaves a sponge in your body after surgery, you may not discover the issue right away. Once you discover it (or should have discovered it), then the statute of limitations begins to run.

If you fail to file a lawsuit within the two-year statute of limitations, you may be barred from bringing a claim. For this reason, it is incredibly important that you consult with a Miami medical malpractice attorney as soon as possible after you discover that you have been injured through medical negligence.

Questions? Contact Us to Schedule a Free Initial Consultation.

Medical malpractice cases can often lead to devastating, lifelong injuries. In these situations, you want an aggressive, proven Miami medical malpractice attorney who will fight for your right to compensation.

Since 1997, the law firm of Kaire & Heffernan has worked with victims of medical malpractice and other forms of negligence, helping them recover the money that they need to get their lives back on track. We offer free initial consultations and never charge a fee unless we recover a settlement or award for you. Contact our office at 305-376-7860 or online to learn more or to schedule an appointment.

Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.