For Legal Help Call: 1-855-MED-ASKS

The Law of Medical Malpractice in Florida:

A Survey of Basic Considerations

I. Statute of Limitations

The General Rule

The statute of limitations for filing a medical malpractice lawsuit in Florida is set forth in F.S. §95.11(4)(b).   It states that an “action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence….”

The Discovery Rule

Introduction and Brief History

On its face, the statute appears deceptively simple and straightforward.  Injured parties have two years to commence an action from the date of the occurrence of the alleged medical malpractice or the date when it was discovered or should have been discovered.  But as a practical matter, the phrase “discovered, or should have been discovered with the exercise of due diligence” has given rise to considerable debate and litigation.What does ‘discovered’ actually mean?

This aspect of the statute of limitations is often referred to as the ‘Discovery Rule,’ which operates to toll the starting of the statute of limitations until the discovery of the alleged medical malpractice.  In 1991, the Florida Supreme Court reaffirmed its then-current interpretation ofthe Discovery Rule to mean knowledge (or the discovery) of possible medical malpractice is imputed to an injured party “when the plaintiff should have known of either (1) the injury or (2) the negligent act.”  University of Miami v. Bogorff, 583 So.2d 1000, 1002 (Fla. 1991).

However, over the years, that interpretationled to several particularly harsh results for the injured and their family, including the Bogorffs.  Adam Bogorff was a three-year old boy with leukemia.  Dr. Koch treated him with methotrexate, and a month after his final treatment, he slipped into a coma.  When he finally awoke, he was a quadriplegic and suffered severe brain damage.  Dr. Koch advised his parents that his condition was a natural result of leukemia and denied that the methotrexate had anything to do with it.

Years later, his parents discovered that some of Adam’s other doctors suspected methotrexate as the cause of his condition from the outset.  They subsequently filed suit against Dr. Koch for medical malpractice and alleged, among other things, fraudulent concealment.  Dr. Koch’s lawyers argued that the action was time-barred and filed a motion for summary judgement.

The Florida Supreme Court agreed.  In announcing its reaffirmation of its interpretation of the Discovery Rule, the Court ruled that the statute of limitations was triggered at the time Adam’s parents were aware of his injuries, i.e., when he slipped into a coma, not when they also learned about the possibility of Dr. Koch’s administration of methotrexate being the cause of his paralysis and brain damage.  Under this interpretation of the Discovery Rule, discovery of the injury alone was deemed sufficient to put injured parties on notice of the possibility of medical malpractice and trigger the running of the statute of limitations.

Critics and several lower courts alike argued that this interpretation and application of the Discovery Rulewas unduly harsh andput patients in an untenable position—assume every injury is the result of medical malpractice or potentially be time-barred from ever bringing an action.

Current Interpretation

Just two years later in 1993, the Florida Supreme Court revisited and revised its position on theDiscovery Rulein Tanner v. Hartog, 618 So.2d 177 (Fla. 1993).  The Court announced: “We hold that the knowledge of the injury as referred to in the rule [under Bogorff] as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical negligence.”  Id. at 181.  This slight revision in language represents a significant departure from the Court’s position on the Discovery Rulereaffirmed just a couple of years earlier in Bogorff.

Under the restated Discovery Rulearticulated in Tanner, knowledge of injury per se is not necessarily sufficient to impute the discovery of possible medical malpractice for purposes of triggering the statute of limitations.  In Tanner, the Florida Supreme Court acknowledged that the nature of some injuries alone can reasonably communicate the likely presence of medical malpractice; however, other injuries are not as conspicuously the result of medical malpractice and are often the result of natural causes.

Accordingly, under the Tanner interpretation of the Discovery Rule, the statute of limitations is triggered upon discovery of the injury itself for those injuriesthat arepatently likelythe result of medical malpractice.  On the other hand, with respect to injuries that can reasonably be attributed to natural causes, the statute of limitations is triggered only upon the discovery that there is reason to believe that medical malpractice may have occurred.

The Tanner Court acknowledged that its reinterpretation of the Discovery Rule“will make it harder to decide as a matter of law when the statute begins to run and may often require a fact-finder to make that determination.”Tanner, 618 So.2d at 182.  But that is an acceptable tradeoff to the Court for making the Discovery Rulemore logical, workable, and fair in practice.

Fraudulent Concealment

The two-year time period in which to commence an action under the statute of limitations can be extended two additional years for a total of four years in the event of fraud, concealment, or intentional misrepresentation of fact.  The statute states for those actions “in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence….”F.S. §95.11(4)(b).

Extensions

Presuit Investigation

Prior to filing a medical malpractice lawsuit, F.S. §766.104(1) requires the claimant’s attorney to conduct a reasonable presuit investigation to determine whether there is a good faith basis to believe medical negligence occurred and to identify which defendants are genuinely potentially liable.

The statute of limitations is automatically tolled for a 90-day period during this pretrial investigation phase.  F.S. §766.104(2).  The statute makes it clear that “no court order is required for the extension to be effective.”  Further, this tolling provision is in addition to any other tolling periods.

However, F.S. §766.104(2) is silent as to whether the statute of repose is similarly tolled during the 90-day investigation period.  The Florida Supreme Court answered the question in 1999.  In Musculoskeletal Institute Chartered v. Parham, 745 So.2d 946, 953 (Fla. 1999), the Court held that the tolling provision contained in F.S. §766.104(2) that is applicable to the statute of limitations is equally applicable to the statute of repose.

Notice of Intent to Initiate Litigation

Following the presuit investigation required by F.S. §766.104(1) but before filing a complaint, the claimant is required to serve each prospective defendant with a notice of intent to initiate litigation.  F.S. §766.106(4).  During this 90-day notice and investigation period, the statute of limitations is tolled.  The statute allows parties to extend this 90-day period by mutual agreement, and the statute of limitations is again tolled during the extension period.  In the event a settlement cannot be reached and the claimant receives notice of termination of negotiations during aperiod of extension, the claimant must file suit within 60 days of receipt of such notice or within the remaining statute of limitations period, whichever is greater.F.S. §766.106(4).

F.S. §766.106(4) is silent as to whether the statute of repose is similarly tolled during the 90-day notice and investigation period.  The Florida Supreme Court answered the question in 1999.  In Musculoskeletal Institute v. Parham, 745 So.2d 946 (Fla. 1999), the Court held that the tolling provision contained in F.S. §766.106(4) that is applicable to the statute of limitations is equally applicable to the statute of repose.

State Governmental Entities

Many hospitals and other healthcare facilities within the state are governmental entities covered by the state’s sovereign immunity statute in F.S. §768.28(1).  The statute sets forth several special requirements and limitations when suing the state or its agencies or subdivisions.

The applicable statute of limitations when suing a governmental entity, such as a county-owned hospital, based upon a medical malpractice claim is the statute of limitations that governs medical malpractice claims generally in F.S. §95.11(4)(b).  The sovereign immunity statute states that “an action for damages arising from medical malpractice … must be commenced within the limitations for such actions in s.95.11(4).”F.S. §768.28(14).

Medical Malpractice Resulting in Wrongful Death

In cases where medical malpractice results in death, the statute of limitations governing medical malpractice claims applies, not the statute of limitations for wrongful death actions.  Ash v. Stella, 457 So.2d 1377 (Fla. 1984).  Although both statutes run for a two-year period, the critical difference between the application of the two statutes is when the governing statute begins to run.  In this scenario, that statute is the one for medical malpractice claims, and it begins to run when the medical malpractice occurred or when it is discovered or should have been discovered, not upon death.

In Ash, the Florida Supreme Court observed that F.S. §95.11(4)(b) defines an action for medical malpractice “as a 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.” Id. at 1379.The foregoing language was adopted in 1975, but prior to that change in language, the medical malpractice statute of limitations did not apply to wrongfuldeath actions.  The court noted that by changing the statute’s definition of “action for medical malpractice” to specifically include “damages because of death, the legislature clearly intended this section to apply to wrongful death actions in cases where the basis for the action is medical malpractice.” Id.

Plaintiffs must be keenly aware of the important distinction between the two statutes and when the operative statute begins to run.  In the Ash case, Nicholas Stella, serving as the personal representative of his wife’s estate, sued Dr. Terrence Ash for her wrongful death after he failed to properly diagnose her malignant hemangiopericytoma.  The misdiagnosis occurred on January 7, 1977.  On March 23, 1977, a different doctor made the proper diagnosis of her condition, but according to the plaintiff, the delay in properly diagnosing her condition resulted in her untimely death on January 31, 1978.

The issue before theAsh Court was when did the statute of limitations begin to run.  Under these facts, there were three possibilities—the date of the initial misdiagnosis, the date of the subsequent proper diagnosis, or the date of her death.  The Court ruled that the statute began to run at the time the decedent discovered or should have discovered the misdiagnosis.  Ash, 457 So.2d at 1379.  The Court concluded that the exact date of the discovery was a question of fact and remanded the case back to the lower court for further proceedings.  Its decision was based on the fact the March 23, 1977 diagnosis was a preliminary one.  It was not until March 30, 1977 that further testing definitively confirmed that preliminary diagnosis.

In Ash, the Florida Supreme Court made it absolutely clear that claims for wrongful death based on medical malpractice are subject to the statute of limitations governing medical malpractice, not the statute of limitations for wrongful death actions.  Failure to understand this critical distinction and when the two-year period for filing an action begins to run in these types of cases can inadvertently result in being time-barred from commencing an otherwise meritorious action.

II. Statute of Repose

The General Rule

Florida has a statute of repose for medical malpractice claims, which is contained within the samesection governing the statute of limitations in F.S. §95.11(4)(b).  It states “in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….”

The Florida Supreme Court observed that there “is considerable misunderstanding of the relationship between statutes of limitations and statutes of repose.”  Kush v. Lloyd, 616 So.2d 415, 418 (Fla. 1992).  The Court sought to clear up the confusion by explaining the difference as follows.  “A statute of limitation begins to run upon the accrual of a cause of action…. On the other hand, a statute of repose … runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued.”  Id.

The Court went on to note that a statute of repose typically starts to run at an earlier date and continues for a longer time period than its corresponding statute of limitations, and importantly, it is not affected by the Discovery Rule.  The practical effect of the interplay between Florida’s two statutes is that the statute of repose can operate to extinguish a claim that could otherwise have been brought within the statute of limitations period before it is even discovered.

That was the result in Kush.  Diane Lloyd gave birth to a deformed son in 1976.  After genetic testing, she and her husband received assurances from their doctor that there were no genetic abnormalities discovered and that it was safe for them to have another child.  Dr. Arthur Kush began providing Ms. Lloyd with medical care in 1979.  On December 24, 1983, she gave birth to another son with the same deformities as the first.  Subsequent genetic testing revealed that both sons inherited the genetic abnormality 10p trisomy from Ms. Lloyd.

She and her husband filed suit on December 24, 1985 for, among other things, wrongful birth based on negligent failure to diagnose an inheritable genetic impairment.  The Court ruled that the statute of repose barred their claim.  Kush, 616 So.2d at 424.  Although the suit was properly filed within the statute of limitations period, it was outside the four-year period for statute of repose purposes.  Kushestablishes that the statute of repose begins to run at the time of the negligent act (in this case, themisdiagnosis) even if the cause of action does not accrue until after the statute of repose time-period has elapsed (in this case, the birth of the second child).

The Florida Supreme Court makes it clear that when there is a conflict between the state’sstatute of limitations and statute of repose as to whether a potential action for medical malpractice can be brought (time-barred by the statute of repose yet still within the period for commencing an action under the statute of limitations), the result dictated by the application of the statute of repose controls.  The Court expressly noted that the very purpose of the statute of repose is to extinguish otherwise valid causes of action, sometimes even before they accrue.  Kush, 616 So.2d at 421.

Children Eight Years of Age and Younger

Florida’s statute of repose does not bar the claim of a child on or before his or her eighth birthday.  This limitation is contained in the statute itself, which reads in pertinent part “except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.”F.S. §95.11(4)(b).

It is important to understand that this provision has no bearing on the statute of limitations, which can still bar a child’s claim prior to his or her eighth birthday.

Fraudulent Concealment

The four-year limit imposed by the statute of repose can be extended to seven years in the event of fraud, concealment, or intentional misrepresentation of fact. F.S. §95.11(4)(b).Seven years from the date of the occurrence of the claimed medical malpractice is the absolute maximum time period potentially available to commence an action based on medical malpractice.

The statute does not indicate what constitutes‘concealment,’ so the Florida Supreme Court has done so.  In Nardone v. Reynolds, 333 So.2d 25, 37 (Fla. 1976), the Court announced that concealment requires the tortfeasor to have knowledge about plaintiff’s condition butknowingly fails to convey it.  There must be some intentional act that prevents discovery of the injury by plaintiff.  In 2003, the Supreme Court refined the definition by adding “this intentional withholding of information acts to delay plaintiff’s ability to discover the tortfeasor’s wrongdoing or the nature of the injury itself.”Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 863 So.2d 201, 206 (Fla. 2003).  As the Court pointed out, “[o]ne cannot conceal what one does not know.”  Id.at 207.

Relying on its reasoning through the years in articulating the definition of concealment, the Nehme Court held that the term ‘concealment’ as used in the statute of repose “does not encompass negligent diagnosis by a medical provider.”  Id. at 209. Accordingly, a negligent diagnosis alone is not sufficient to constitute concealment for purposes of triggering the extended seven-year period under the statute of repose.

III. Presuit Requirements for Medical Malpractice Cases

Florida law requires a claimant to strictly comply with a series of presuit requirements prior to initiating a medical malpractice lawsuit.  Compliance with these presuit requirements is a condition precedent for filing suit in court against any healthcare practitioner for medical malpractice.  Failure to satisfy these statutory presuit requirements will result in being barred from bringing an action for personal injury or wrongful death based upon a claim of medical malpractice.  F.S. §§766.104, 766.106, 766.201, 766.203, 766.204, 766.205, and 766.206(2).  The Florida Supreme Court commentedthat no medical malpractice action may be brought in the courts of Florida “without compliance with these stringent statutory predicates.” Musculoskeletal Institute Chartered v. Parham, 745 So.2d 946, 950 (Fla. 1999).

Presuit Investigation by Claimant

The initial presuitrequirement is the claimant’s presuit investigation mandated by F.S. §766.104.  The stated legislative intent for this requirement is to provide prompt resolution of medical malpractice claims and eliminate frivolous ones by requiring such investigations to include (1) verifiable requirements that reasonable investigation precede both medical malpractice claims and defenses and (2) medical corroboration procedures.  F.S. §766.201(2).

F.S. §766.104(1) provides for theclaimant’s presuit investigation requirement as follows.

No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless 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….  For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence.

F.S. §766.203(2) requires claimants to carry out the presuit investigation to determine whether there are reasonable grounds to believe that prospective defendants were negligent in rendering care and treatment and whether that negligence resulted in injury.  To satisfy this presuit investigation requirement, claimants are required to obtain corroboration that there are reasonable grounds to support a claim of medical negligence from a medical expert.Id.Claimants must submit the verified written medical expert opinion together with the notice of intent to initiate litigation required by F.S. §766.106(2).  F.S. §766.203(2).  A verified written medical expert opinion is essentially an affidavit or notarized sworn statement in which the medical expert swears that he or she has reviewed the necessary medical records and believes that there is a reasonable basis to proceed with a medical malpractice lawsuit.

The statute of limitations is tolled automatically for 90 days during the presuit investigation phase by filing a petition with the clerk of the court in which the lawsuit will be filed and paying a filing fee not to exceed $42.  A court order is not required for the extension to be effective. This 90-day extension is in addition to any other applicable tolling periods.  F.S. §766.104(2).

All necessary presuit requirements must be completed prior to the expiration of the statute of limitations applicable to the claim.  Otherwise, the trial court will dismiss the claim with prejudice.  That is what occurred in Berry v. Padden, 84 So. 3d 1145 (Fla. Dist. Ct. App. 2012). The plaintiffs submitted a letter from a medical expert that was not sworn, notarized, or otherwise verified along with the required notice of intent to initiate litigation.  The letter was intended to serve as the required verified written medical expert opinion.  Although the trial court provided plaintiffs with ample opportunity to resubmit a valid verified letter on a timely basis, they eventually did so after the statute of limitations expired with respect to their claim.  Consequently, the trial court dismissed their claim with prejudice.  The Florida Fourth District Court of Appeal affirmed the decision.  Barry, 84 So. 3d at 1147.

Notice of Intent to Initiate Litigation

Once the claimant’s presuit investigationis completed, the claimant must notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical malpractice.  F.S. 106(2)

.  The notice must be served on defendants at least 90 days before filing suit and contain the following, if available:

  1. A list of all known healthcare providers who have treated claimant for the injury complained of since the alleged act of negligence;
  1. All known healthcare providers who treated claimant during two-year period prior to the alleged act of negligence;
  1. Copies of all medical records relied upon by the medical expert who signed the verified written medical expert opinion; and
  1. The executed authorization form provided in S. §766.1065 (protected health information release form).

The notice of intent to initiate litigation triggers a 90-day period for prospective defendants to conduct their own presuit investigation.  F.S. §766.106(3).  The claimant is barred from filing suit during this 90-day investigation period.  The notice also tolls the statute of limitations with respect to all prospective defendants during the 90-day presuit investigation period.  F.S. §766.106(4).  The parties may agree to extend the 90-day period, and the statute of limitations is tolled during any such extension.  Florida Rules of Civil Procedure 1.650(d) discusses, in detail, other important dates and deadlines associated with the notice of intent to initiate litigation.

Presuit Investigation by Prospective Defendants

Upon receipt of the claimant’s notice of intent to initiate litigation, each prospective defendant is required to conduct its own investigation to determine whether there are reasonable grounds to believe that (1) the prospective defendant was negligent in the care or treatment of the claimant and (2) the negligence resulted in injury to the claimant.  F.S. §766.203(3).  Each defendant’s presuit investigation described in F.S. §766.106(3) and §766.203(3) must be conducted prior to submitting any response to claimant.During this presuit investigation phase, the claimant and prospective defendants exchange written questions, requests for documents and other relevant evidence, and take unsworn statements.

F.S. §766.106(3) requires that the presuit investigation must include one or more of the following:

  1. Internal review by a duly qualified claims adjuster;
  1. Creation of a panel made up of an attorney with knowledge of prosecuting or defending medical malpractice cases, a healthcare provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster; or
  1. A contractual agreement with a state or local professional society of healthcare providers that maintains a medical review committee.

The insurer or self-insurer is required to investigate the claim in good faith, and both the claimant and prospective defendant are required to cooperate with the investigation in good faith.  The insurer is authorized to require the claimant to appear before a pretrial screening panel or a medical review committee and submit to a physical examination, if required.  Unreasonable failure to comply with these requirements justifies dismissal of the claim or defense, as the case may be.  F.S. §766.106(3).  F.S. §§766.106(6), 766.205, and Florida Rules of Civil Procedure 1.650(c) set forth the rules for discovery during the prospective defendant’s presuit investigation.

Prospective Defendants’ Right to Ex Parte Communications

In 2013, prospective defendants in medical malpractice cases were given the right to interview the claimant’s treating healthcare providers as part of the informal discovery process during the mandatory presuit investigation.  F.S. §766.106(6)(b)5.  The interviews are to be conducted consistent with the Authorization for Release of Protected Health Information contained in F.S. §766.1065.  In accordance with the requirements for the notice of intent to initiate litigation, the Release must be signed by the claimant and submitted together with the notice.

The 2013 amendments to F.S. §766.106 and §766.1065 have proven to be quite controversial because they grant prospective defendants as well as their insurers, lawyers, and experts the right to conduct ex parte interviews with the claimant’s healthcare providers. Section E of the Release contained in F.S. §766.1065 states that the authorization granted by the Release expressly allows prospective defendants and their lawyers to interview claimant’s healthcare providers “without the presence of the Patient [claimant] or the Patient’s attorney.”  However, claimant’s healthcare providers are not required to agree to ex parte interviews with defendants’ lawyers.

In addition, Section I of the Release states that claimant “understands that information used or disclosed under this authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations.”  This provision raises privacy concerns for many patients and would-be claimants.  But if they refuse to sign the Release or revoke authorization, then any notice of intent to initiate litigation is void and thus a necessary precondition for filing a medical malpractice lawsuit in court remains unsatisfied.  As a result, claimants are now forced to choose between their privacy concerns regarding their medical history or proceeding with their medical malpractice claim.

The Florida First District Court of Appeal rejected a claim that the 2013 amendments violate the Florida Constitution.  Weaver v. Myers, 170 So. 3d 873 (Fla. Dist. Ct. App. 2015).The plaintiff in the case challenged the constitutionality of the amendments on four grounds: (1) they violate the separation of power doctrine, (2) they constitute an invalid special law, (3) they impermissibly burden the right of access to the courts, and (4) they violate claimants’ right to privacy.  Id. at 876.  The Court rejected all four arguments.  Id. at 883.

Of particular interest was the Court’s discussion of the access to the courts and privacy issues.  It rejected the access to courts argument by concluding the 2013 amendments do not abolish or eliminate any substantive right of claimants.  They simply impose a reasonable condition precedent to filing suit.  Id. at 882.   The Court quickly dispensed with the privacy argument by pointing out that “any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim.”  Id.

The Florida Supreme Court agreed to hear the appeal in this case. Weaver v. Myers, SC15-1538 (Fla. 2016).  The Court heard oral arguments on December 8, 2016.  It has yet to issue its decision as of the end of April 2017.

Response to Notice of Intent to Initiate Litigation

At or prior to the end of prospective defendants’ 90-day presuit investigation period, F.S. §766.106(3)(b) requires each prospective defendant or defendant’s insurer to provide one of three types of responses to claimant:

  1. Reject the claim;
  1. Make a settlement offer; or
  1. Make an offer to arbitrate where liability is deemed admitted, and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.

A response rejecting the claim must be accompanied by a verified written medical expert opinion from a medical expert corroborating the lack of reasonable grounds for medical malpractice litigation.  F.S. §766.203(2)(b).  The claimant may file suit at any time after receiving written rejection of its claim fromthe prospective defendant. Florida Rules of Civil Procedure 1.650(d)(2).In the event a response is not provided to claimant within 90 days of receiving the notice of intent to initiate litigation, such failure to respond will be deemed a final rejection of the claim.

Optional Procedures During Mandatory Presuit Phase

Voluntary Binding Arbitration

The parties may elect to have damages determined by an arbitration panel.  This option is available only after a finding that reasonable grounds for a medical negligence claim exists following the prospective defendant’s presuit investigation.  That is, liability is conceded, and only the amount of damages is at issue.  F.S. §766.207.

This election can be made by either party by serving a request for voluntary binding arbitration of damages upon the other party.  This election must be made within 90 days after service of claimant’s notice of intent to initiate litigation upon the prospective defendant.  The opposing party has 30 days from the receipt of the request to accept.  Acceptance of the offer results in a binding commitment to comply with the decision of the arbitration panel.  F.S. §766.207.

Presuit Investigation by the Court

Upon completion of both the claimant’s and prospective defendant’s presuit investigations, either party may file a motion in circuit court requesting the court to determine whether the opposing party’s claim or denial has a reasonable basis.  If the court determines that either the claim or denial fails to comply with the reasonable investigation requirement, the court will dismiss the claim or strike the defendant’s pleading.  The person who mailed either the baseless claim or denial is personally liable for all attorney’s fees and costs incurred during the investigation and evaluation period, including the reasonable attorney’s fees and costs of the opposing party.  F.S. §766.206.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Florida has waived sovereign immunity on a limited basisvia F.S. §768.28(1)with respect to liability for torts.  Florida along with its agencies and subdivisions can be sued in actions alleging medical malpractice.  The statute defines ‘agencies and subdivisions’ to include “executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities….”  F.S. §768.28(2).

Officers, employees, and agents of the state or any of its subdivisions are immune and cannot be held personally liable in tort or named as a defendant for any injury or damage suffered as a result of any act, event, or omission of action in the scope of their employment.  F.S. §768.28(9)(a).  However, they lose their immunity if they act in “bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”  Id.

Damage amounts that can be recovered, either by settlement or judgement, are capped at $200,000 for an incident affecting one person and $300,000 for an incident affecting multiple people.  F.S. §768.28(5).  These caps on damages are quite restrictive.  Regardless of how severe a victim’s injuries are, the maximum damage award permitted under the sovereign immunity statute remains $200,000.  Similarly, no matter how many victims there are arising from a single incident, the total damages permissible to all injured parties is still capped at $300,000.  In addition, punitive damages or interest for the period prior to judgement are not permitted under the sovereign immunity statute.  Id.Attorney fees are capped at 25% of any judgement or settlement.  F.S. §768.28(8).

Good Samaritan Act

Outside of Hospital or Other Medical Facility Setting

Florida’s Good Samaritan Act, F.S. §768.13,provides limited immunity from civil liability for those who render aid in an emergency situation.  Although the Act protects both healthcare professionals and laypersons, the Act makes it clear in F.S. §768.13(2)(c)3 that “the Legislature’s intent is to encourage healthcare practitioners to provide necessary emergency care to all persons without fear of litigation….”That is, the public policy objective of the Act is to encourage healthcare professionals to come to the aid of others during a medical emergency without the fear of being sued for their good deed.

The Act states:

“[a]nyperson, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment … without objection of the injured victim or victims … shall not be held liable for any civil damages as a result of such care or treatment… where the person acts as an ordinary reasonably prudent person would have acted….”  F.S. §768.13(2)(a).

To qualify for protection under the Act, the following four conditions must all be present:

  1. Care or treatment rendered during an emergency;
  1. Care or treatment rendered both gratuitously and in good faith;
  1. Person receiving care or treatment does not object; and
  1. Good Samaritan acts as a reasonable prudent person would have under the circumstances.

Criticism of Florida’s Good Samaritan Act

It should be noted that some commentatorsquestion the effectiveness of the intended protection provided by the Act outside of a hospital emergency medical condition scenario.  Specifically, the requirement that the Good Samaritan must act as a “reasonably prudent person” in order to enjoy the intended immunity provided by the Act is often called into question.  That is essentially the standard of care required of people at all times regardless of the Act, so critics ask rhetoricallywhat protection does it actually provide if it still requires the same standard of care that Good Samaritanswould owe the injured even in the absence of the Act.

The other aspect of the Act that is often criticized is the “without objection” requirement.  First responders know that seriously injured or ill people frequently resist treatment because of the pain from being touched or moved, or they lack the mental capacity to make a rational decision to refuse medical treatment because of their injury or illness.  But under the terms of the Act, a Good Samaritan can fail to qualify for the protection afforded by the Act in situations where the injured person apparently objects to treatment but is nevertheless in dire need of it.

The Florida Fourth District Court of Appeal was particularly harsh in its criticism of the Good Samaritan Act on those two points.  Botte v. Pomeroy, 438 So.2d 544 (Fla. Dist. Ct. App. 1983).   In Botte, the Court stated it is “unhappy that the statute has been watered down by the inclusion of ‘without objection’ language.”  Id. at 545.  It added that the requirement “permits the injured party to, in effect, control the rescue operations so that the immunity envisaged is obviated.”  Id.

Turing its attention to the standard of care requirement, the Court noted “there is another portion of the statute that completes its emasculation, because the good samaritan is required to render his assistance like an ‘ordinary reasonably prudent man.’”  Id.The Court concluded its decision with this final damning observation: “As it now stands, it does not appear to be a very good idea to render assistance to an accident victim.”  Id.

Hospital Setting While Treating Emergency Medical Condition

Florida’s Good Samaritan Act also provides enhanced protection for any healthcare provider, including hospitals, providing emergency services as required by the Emergency Medical Treatment and Active Labor Act (federal law requiring hospital emergency departments to screen, treat, and stabilize patient’s emergency medical condition regardless of ability to pay). F.S. §768.13(2)(b)1.  Basically, the Good Samaritan Act provides them with immunity from civil liability for negligence while rendering healthcare treatment in response to a patient’s immediate emergency medical condition.Once the patient’s condition has been stabilized, the enhanced immunity provided by this subsection is no longer applicable.F.S. §768.13(2)(c)2.

Providers are denied the immunity granted by this subsection only for actions or inaction under the circumstances that constitute “a reckless disregard for the consequences so as to affect the life or health of another.”  Id.‘Reckless disregard’ is defined as conduct that the healthcare provider “knew or should have known, at the time such services were rendered, created an unreasonable risk of injury … and such risk was substantially greater than that which is necessary to make the conduct negligent.”  F.S. §768.13(2)(b)3.

Additional Immunities and Limitations on Liability

Medical Review Committees

Members of a duly appointed medical review committee together with other persons associated with the committee’s operations listed by statute are immune from civil liability for damages in connection with any actions performed within the scope of the committee’s work.  F.S. §766.101(3).  This immunity does not apply to actions performed with intentional fraud.  The statute provides a detailed list of what constitutes a ‘medical review committee.’  Examples include a committee of (1) a hospital, (2) a health maintenance organization, and (3) a state or local professional society of healthcare providers.  F.S. §766.101(1)(a).

The Legislature’s intent behind this grant of immunity is “to encourage medical review committees to contribute further to the quality of health care in this state by reviewing complaints against physicians” as provided for in the statute.  F.S. §766.101(7).

Certain Boards, Committees, or Other Entities

Members of, as well as healthcare consultants to, any committee, board, group commission, or other entity established and operated for purposes of quality improvement review, evaluation, and planning in a state-licensed healthcare facility are immune from civil liability in connection with their actions, decisions, omissions, and utterances in the performance of their duties.  F.S. §766.1015(1).  Actions, decisions, omissions, or utterances made or done in bad faith or with malicious intent are not immune from civil action.  F.S. §766.1015(2).

Volunteer Healthcare Services to Low-Income Patients

F.S. §766.1115 extends sovereign immunity to healthcare providers who contract with a governmental contractor to provide healthcare services to low-income recipients on a volunteer, uncompensated basis.  A list of eligible types of healthcare providers is contained in F.S. §766.1115(3)(d), and subsection (3)(c) defines ‘governmental contractor’ to mean the Florida Department of Health, county health departments, special taxing districts with healthcare responsibilities, and hospitals owned and operated by a governmental entity.  If all the statutory requirements are met, the volunteer healthcare provider is granted the sovereign immunity provided for in F.S. §768.28(9).

Limitation on Damages Against Insurers

F.S. §766.2021 caps the liability for damages in a medical malpractice claim against insurers, prepaid limited health services organizations, health maintenance organizations, and prepaid health clinics that employ a licensed healthcare provider to the maximum amount of damages that can be imposed directly upon the healthcare provider in question underF.S. §766.118.

V. Required Elements of a Medical Malpractice Complaint

Florida Rules of Civil Procedure1.100(c)provides that complaints must contain a caption with the name of all parties, the name of the court, the file number, and a designation identifying the party filing the complaint.  Rule 1.100(d) states that a civil cover sheet (Form 1.997) must be completed and filed with the court clerk at the time the initial complaint is filed by the party initiating the action.

According to Rule 1.110(b), the complaint must state a cause of action and must contain:

  1. A short and plain statement explaining the basis for the court’s jurisdiction;
  1. A short and plain statement of the ultimate facts showing that the complainant is entitled to relief; and
  1. A demand for judgement for the relief to which complainant believes he or she is entitled. Relief in the alternative or of several different types may be demanded.

F.S. §768.042(1) states that in any action to recover damages for personal injury or wrongful death the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdiction amount established for filing in any court of competent jurisdiction.

The complaint must contain a certificate of counsel that a reasonable pre-suit investigation has been conducted and that there is a basis for a good faith belief that grounds exist for an action against each of the named defendants.  F.S. §766.104.

After the complaint has been filed with a court of competent jurisdiction and has been served upon the defendants, the claimant is required to provide a copy of the complaint to the Florida Department of Health.  In addition, if the complaint involves a facility licensed under Chapter 395 (Hospital Licensing and Regulation), Florida Statutes, then a copy of the complaint must also be provided to the Agency for Health Care AdministrationF.S. §766.106(2)(b).

VI. Medical Expert Witnesses

Basic Requirements

To qualify as a medical expert witness in a Florida medical malpractice case,F.S. §766.202(6) requires that the person must duly and regularly engage in the practice of his or her profession, hold a healthcare professional degree from a university or college, and meet the additional requirements of a medical expert witness as set forth inF.S. §766.102(5), which provides additional special requirements for experts to provide testimony in medical malpractice cases.

F.S. §766.102(5)lists requirements for three distinct categories of medical expert witnesses, viz., specialist, general practitioner, and healthcare provider other than a specialist or general practitioner.  In order to provide expert testimony about the prevailing professional standard-of-care in any of the three categories, the person must be a healthcare provider with an active and valid license and must perform a complete review of the pertinent medical records as well as meet the following criteria(see rejection ofsame specialty standard discussion in next Subsection below as it relates tocurrent standard in Florida, i.e., same “or similar” standard):

  1. If offered as a specialist, the healthcare provider must (1) specialize in the same or similar specialty as the healthcare provider against whom or on whose behalf testimony is offered and (2)have devoted time during the three years immediately preceding the date of the occurrence that serves as the basis for the action to (a) the active clinical practice of or consulting with respect to the same or similar specialty, (b) instruction of students at an accredited health professional school or accredited residency in the same or similar specialty, or (c) a clinical research program affiliated with an accredited health professional school or accredited residency program in the same or similar specialty.
  1. If offered as a general practitioner, the healthcare provider must have devoted time during the five years immediately preceding the date of the occurrence that serves as the basis for the action to (1) the active clinical practice or consultation as a general practitioner, (2) instruction of students at an accredited health professional school or accredited residency program in the general practice of medicine, or (3) a clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.
  1. If offered as a healthcare provider other than a specialist or general practitioner, the expert must have devoted time during the three years immediately preceding the date of the occurrence that serves as the basis for the action to (1) the active clinical practice of or consulting with respect to the same or similar health profession, (2) instruction of students at an accredited health professional school or accredited residency program in the same or similar health profession, or (3) a clinical research program affiliated with an accredited health professional school or accredited residency program in the same or similar health profession.

It must be noted that F.S. §766.102(12)also requires the medical expert witness to have the same state license as the healthcare provider against whom or on whose behalf testimony is offered or to have a valid expert witness certificate.  This section was introduced by the Florida Legislature in 2011 and essentially requires expert witnesses in medical malpractice cases to be licensed in Florida or obtain a special category of license from the Florida Department of Health called an expert witness certificate, which was created in response to the new requirement in F.S. §766.102(12).

However, the Florida Supreme Court declined to adopt the F.S. §766.102(12) requirement.  In Re Amendments to Florida Evidence Code, 144 So. 3d 536 (Fla. 2014).  In doing so, the Court cited concerns that the requirement “is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”  Id. at 537.  Accordingly, it appears that out-of-state medical expert witnesses who otherwise meet all the statutory requirements may testify in Florida medical malpractice cases.

Florida Supreme Court Rejects Daubert and Same Specialty Standards

In 2013, the Florida Legislature amended F.S. §§90.702 and 90.704 of the Florida Evidence Code(Daubert Amendment) and F.S. §766.102(5)(a) (Same Specialty Amendment). The Daubert Amendment changes the standard of admissibility for scientific expert evidence at trial from the Frye standard to the Daubert standard.  The Same Specialty Amendment requires a standard-of-care expert witness in medical malpractice cases to specialize in the same specialty as the healthcare provider against whom or on whose behalf testimony is offered.  Prior to this change, a standard-of-care expert witness could either specialize in the same specialty or a similar specialty.

On February 16, 2017, the Florida Supreme Court declined to adopt both the Daubert Amendment and the Same Specialty Amendment, to the extent they are procedural.  In Re Amendments to Florida Evidence Code, No. SC16-181 (Fla. Feb. 16, 2017).In declining to adopt the Amendments, to the extent they are procedural, the Courtacknowledgedthe “grave constitutional concerns”that their adoptionwould undermine the right to a jury trial and deny access to the courts. Id. at 8. In addition, adopting them would have a chilling effect on the ability to obtain expert witnesses and be prejudicial to the administration of justice, according to the Court.

VII. Comparative Negligence / Joint and Several Liability

Florida is a pure comparative negligence state.Under Florida law, fault is determined and apportioned among the claimant and defendants by the trier of fact, and the “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages … but does not bar recovery.”  F.S. §768.81(2).  Even if the claimant is judged have been 50% or more at fault, his or her recovery is not completely barred, just reduced by his or her assigned proportion of fault.

In a negligence action, the statute provides “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” F.S. §768.81(3).  This directive also appears in F.S. §766.112 specifically in reference to “damages for personal injury or wrongful death arising out of medical negligence” when apportionment of damages involves a teaching hospital or a board of trustees of a state university.

VIII. Limitations on Damages

Statutory Limitations on Noneconomic Damages

Florida statute places various caps on noneconomic damages for medical malpractice claims.  The caps range from $150,000 up to $1,500,000 based on the type of injury sustained and the type of defendant, i.e., doctor, hospital, etc.F.S. §766.118.  However, it is important to understand that this is an area of the law that appears to be in considerable flux and thus subject to uncertainty.  In 2014, the Florida Supreme Court held that a specific portion of the law capping noneconomic damages violates the state constitution (see Subsection immediately below).  Several cases are currently making their way through the court system challenging other aspects of the law based on the Supreme Court’s 2014 decision.  Consequently, interested parties are advised to check regularly for changes in this unsettled and evolving area of the law.

In 2003, Florida enacted a highly controversial law limiting the amount of noneconomic damages that can be obtained by a claimant based on the type of injury and various types of defendants.F.S. §766.118.  For example, it places a limit of $500,000 per claimant for a nonemergency“cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants….” Further, the law provides that no practitioner is liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.  The limitation on damages is raised to $1,000,000 in the event of death or permanent vegetative state.

In an action against a nonpractitioner for personal injury or wrongful death as a result of medical negligence, the standard limitation on damages is $750,000 per claimant.  F.S. §766.118(3).  Again, if the negligence results in death or permanent vegetative state, the limit is raised to $1,500,000.

The limitation on noneconomic damages for claims against practitioners providing emergency services and care is $150,000 per claimant, with an aggregate cap of $300,000 for all claimants against all practitioner defendants.  F.S. §766.118(4).  For claims against nonpractitioners involving emergency services and care, the cap on damages is $750,000 per claimant, with an aggregate cap of $1,500,000 for all claimants against all nonpractitioner defendants.  The limitation on damages is not raised for cases involving death or permanent vegetative state for either practitioners or nonpractitioners when emergency services and care are rendered.

Court Challenges toStatutory Limitations on Noneconomic Damages

In 2014, the Florida Supreme Court held that the statutory limitation on noneconomic damages for medical malpractice claims involving wrongful death “violates the Equal Protection Clause of the Florida Constitution.”  Estate of McCall v. United States, 134 So. 3d 894, 916 (Fla. 2014).  The Court struck down that specific section of the law, F.S. §766.118(2), because, among other reasons, “it imposes unfair and illogical burdens on injured parties.”  McCall, 135 So. 3d at 901.  It observed that “claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.”  Id.  The Court’s decision in McCallis limited to wrongful death claims based upon medical malpractice.

McCall left open the question of whether the statute’s limitations on noneconomic damages for medical malpractice actionsinvolving personal injury also violates the Florida Constitution.In July 2015, the Florida Fourth District Court of Appeal held that it does in North Broward Hospital District v. Kalitan, 174 So.3d 403, 411 (Fla. Dist. Ct. App. 2015).  The Court stated “adhering to McCall, the section 766.118 caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection.”  Id.

The FloridaLegislature’s express rationale for enacting the limitations on noneconomic damages for both wrongful death and personal injury claims in F.S. §766.118 was to address the purported medical malpractice crisis at the time of its passage in 2003.  However, no data or other evidence support the current existence of a so-called medical malpractice crisis.  Accordingly, since the stated objective for enacting the statute no longer exists, “there is no longer a ‘legitimate state objective’ to which the caps could” rationally and reasonably relate.  Kalitan, 174 So. 3d at 411.Since F.S. §766.118 applies to both wrongful death and personal injury claims and the rationale for its passage applies equally to both types of claims, the fact that the cap on wrongful death claims violates the Florida Constitution means that the cap on personal injury claims is similarly unconstitutional.Id.

In October 2016, the Florida Second District Court of Appeal issued an opinion nearly identical to the Fourth District’s in Kalitan.  In Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2d DCA Oct. 26, 2016), the Court concluded “that the Kalitancourt properly applied the McCall holding to personal injury medical malpractice actions[,] and we agree with the Fourth District on this issue.”

Two of the five District Courts of Appeal in Florida have ruled that the statutory limitations on noneconomic damages in personal injury medical malpractice actions violate the Equal Protection Clause of the Florida Constitution.  The Florida Supreme Court will also weigh in on this issue literally at any moment.  The Hospital District appealed the Fourth District Court of Appeal’s decision in Kalitan, and the Supreme Court heard oral arguments on June 9, 2016.  As of late April 2017, the Court has yet to issue its written decision, but it will do so shortly.

IX. Limitations on Attorney Fees

The Florida Constitution limits the contingent fees attorneys may charge in medical malpractice cases.  Article I, Section 26 states that “[i]n any medical liability claim involving a contingency fee, theclaimant is entitled to receive no less than 70% of the first $250,000.00… whether received by judgment, settlement, or otherwise, and regardless of the number of defendants.”  Furthermore, the claimant “is entitled to 90% of all damages in excess of $250,000.00.”  Id.

Under The Florida Bar Rules of Professional Conduct, an attorney who charges a contingent fee in a medical malpractice case must provide a written copy of the limitation of fees language contained in Article I, Section 26 of the Florida Constitution to the client.  The attorney must also verbally inform the client of the constitutional limitations on attorney fees.  Rule 4-1.5(f)(4)(B)(iii).

The constitutional cap on attorney fees can be waived by the client in the event the attorney elects not to accept the representation of the client under the fee limitation structure set forth in the Florida Constitution.Rule 4-1.5(f)(4)(B)(iii)b.  If a contemplated contingency fee arrangement deviates from the fee limitations established in the Florida Constitution, the attorney must notify the client of the alternative terms both verbally and in writing.

When the client waives the constitutional cap on attorney fees, limitationson fees are then governed by Rule 4-1.5(f)(4)(B)(i).  In general, the maximum permissible fee ranges from 33 1/3% to 40% of any recovery up to $1,000,000; plus 20% to 30% of any portion of the recovery between $1,000,000 and $2,000,000; plus 15% to 20% of any recovery over $2,000,000. The maximum percentage of a client’s recovery the attorney is entitled to in fees is contingent upon the stage at which the case has been resolved, i.e., prior to trial through appeals process.

If the client decides to waive the attorney fee limitations, the client “may do so by waiving such rights in writing, under oath, and in the form provided” in Rule 4-1.5(f)(4)(B)(iii)c.  The Rule contains a two-part form for the client to execute—the first part titled “Waiver of the Constitutional Right Provided in Article I, Section 26 of the Florida Constitution” and the second part titled “Acknowledgement by Client for Presentation to the Court.”

X. Patient Compensation Funds

Florida Birth-Related Neurological Injury Compensation Plan

The Florida Birth-Related Neurological Injury Compensation Association (“NICA”) was established in 1988.  It is a statutorily based entity that oversees the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”) that is used to pay for specific expenses of infants born with certain neurological injuries.The Plan provides qualifying claimants with compensation without regard to the negligence of any healthcare provider and without the need for filing a civil lawsuit and potentially protected litigation.

The legislative intent in creating the Plan is to provide exclusive no-fault compensation for a specifically defined class of catastrophic birth-related neurological injuries that result in extremely high costs for custodial care and rehabilitation.  F.S. §§766.301, 766.303.

To be covered by and entitled to the benefits provided for under the Plan, a claimant must prove to an administrative law judge the following facts.  F.S. §§766.302-766.316.

  1. The injury is to the infant’s spinal cord or brain;
  1. The injury occurred during birth;
  1. The injury is the result of oxygen deprivation or mechanical injury during labor, delivery, or resuscitation immediately after delivery;
  1. The injury constitutes a permanent and substantial mental and physical impairment;
  1. The infant was born alive;
  1. The birth occurred in a hospital;
  1. The injury is not the result of a genetic or congenital abnormality;
  1. The infant’s weight at birth was at least 2,500 grams or 2,000 grams in the event of multiple gestations;
  1. The doctors and hospital involved with the infant’s delivery participates in the Plan; and
  1. The claim was filed within five years of the infant’s birth.

To quality for compensation under the Plan, claimants must file a petition seeking compensation with the Florida Division of Administrative Hearings.  The petition must contain the information and comply with the procedures specified in F.S. §766.305.  All claims for compensation under the Plan are heard by an administrative law judge who “has exclusive jurisdiction to determine whether a claim” is compensable.  F.S. §766.304.  No civil action can be brought or continued until the administrative law judge has made a determination.  The statute of limitations with respect to any civil action is tolled while the judge is deliberating.  F.S. §766.306.

If the administrative law judge concludes that the claimant is not entitled to compensation under the Plan, the claimant can still pursue a civil action just like any other medical malpractice claim.  However, if the claimant is awarded compensation under the Plan, that is the exclusive remedy available to the claimant.  The statute makes clear that “the rights and remedies granted by this plan … shall exclude all other rights and remedies … arising out of or related to a medical negligence claim with respect to such injury….”  F.S. §766.303(2).

Compensability under the Plan is a defense in a civil action against healthcare providers.  If the defendants file a motion for abatement of the case to the appropriate administrative law court, the circuit court cannot retain the case since the administrative law judge has exclusive jurisdiction to determine Plan compensability.  F.S. §§766.304, 766.309.  Once the claim begins in the administrative court system, the corresponding circuit court case is stayed.

Upon a determination that a claim is compensable under the Plan,F.S. §766.31(1) requiresthe administrative law judge to make an award providing compensation for the following items.

  1. Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel.
  1. Periodic payments of an award to the parents or legal guardians of the infant up to a maximum amount of $100,000.
  1. Reasonable attorney fees as determined by the administrative law judge based on six factors listed in the statute.

The Florida Patient’s Compensation Fund

The Florida Patient’s Compensation Fund (“Fund”) was created in 1975 in accordance with F.S. §766.105.  It functions as excess insurance for participating healthcare providers.  That is, the Fund pays medical malpractice award amounts in excess of the policy limits of the primary malpractice insurance coverage.  Participating healthcare providers remain liable for paying any amount that exceeds the Fund’s coverage, and they are responsible for all punitive damages.  The Fund does not directly affect victims of medical malpractice.

The Florida Office of Insurance Regulation describes Fund participation and coverage as follows.

To become members of the Fund, all licensed Florida hospitals and health care providers electing to enroll in the fund pay an annual membership fee and any applicable assessments based upon past and prospective loss and expense experience; prior claims experience of the members covered under the fund; and risk factors for persons who are retired, semi-retired, or part-time professionals. Hospitals with sovereign immunity are not required to be members of the Fund. Members receive coverage for claims arising from rendering or failure to render medical care or services resulting in injury or death to a patient. Health care providers choose between two coverage limits afforded by the Fund. Coverage may not exceed $1 million per claim, $3 million annual aggregate, or $2 million per claim, $4 million annual aggregate. Health care providers are responsible for paying claim amounts in excess of the selected limit[,] and the Fund is not responsible for paying punitive damages that may be awarded to plaintiffs. Coverage limits afforded by the Fund to hospitals may not exceed $2.5 million per claim and does not provide an annual aggregate.[1]

XI. Apologies and Sympathetic Gestures

Florida is among the 42 states that have some form of apologies or sympathetic gestures statute that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a personal injury lawsuit.  Florida law allows a personto communicate an apology or other sympathetic gestures to a person injured in an accident without it being admissible in court.In Florida, such expressions alone do not constitute an admission.

Florida’s statute is located in the state’s Evidence Code.  It states “statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person … shall be inadmissible as evidence in a civil action.” F.S. §90.4026(2).The statute defines ‘accident’ as meaning “an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.”

It is not settled as a matter of law whether thestatute applies to medical malpractice cases.  Unlike the laws in several other states that expressly contain provisions covering healthcare practitioners and expressions of sympathy, Florida’s law is more general in nature.  It does not explicitly apply to healthcare practitioners; rather, it allows expressions of sympathy towards a person injured in an accident without those expressions being admissible as evidence. It seems reasonable to assume that the term ‘accident’ as defined in the statute is broad enough to include medical malpractice, but it is by no means certain that is what the Florida Legislature intended.

It does not appear that this issue has ever been addressed by a court, so it remains an open question whether the law covers healthcare practitioners in medical malpractice cases.  Regardless, healthcare practitioners must be extremely careful if they chose to communicate apologies or sympathetic gestures despite this uncertainty.  They should not admit fault or blame in connection with an apology.  Any such admission is not covered by the statute and can be used as evidence against the practitioner.The statute provides that a “statement of fault, however, which is part of, or in addition to, any of the above [statements, writings, or benevolent gestures] shall be admissible pursuant to this section.”  F.S. §90.4026(2).

XII. State Law Idiosyncrasies / Traps for the Unwary [other title?]

Topics, if any, to be added following discussion with Florida med mal practitioner / expert.

Florida Med Mal statute is contained in chapter 766:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/0766.html

Florida sovereign immunity waiver statute F.S. §768.28

General roadmap of topics:

http://www.ncsl.org/research/financial-services-and-commerce/medical-liability-medical-malpractice-laws.aspx

[1]Florida Office of Insurance Regulation Market Investigations,Target Market Conduct Final Examination Report of the Florida Patient’s Compensation Fund as of April 25, 2014, (2014).