The Truth about Medical Malpractice in Florida
Tort Reform Hurdles Currently in Statute in Medical Malpractice Claims
Over many years, the Florida Legislature has drastically limited the rights of Florida's families who have been the victims of medical malpractice. The following is a brief summary of these reforms:
- Sovereign Immunity for Doctors providing "free care": Total immunity for doctors, personally, and $10,000 cap otherwise.
- Brain Damaged Baby Caps (NICA): Babies who suffer brain injury due to negligent delivery only receive governmental assistance for rehab and other expenses; $100,000 cap on non-economic damages paid to the parents by hospitals/doctors who participate in NICA.
- ER Imminity: During treatment of an emergency, the ER doctor has immunity unless patient can prove "reckless disregard for the consequences", a nearly impossible hurdle
- ER Caps: $150,000/$300,000 non-economic damage caps for ER claims.
- Docotors Caps: $500,000/per doctor for non-economic damages (for death/seriosus injury, up to twice this amount).
- Hospital Caps: $750, 000 per claim for non-economic damages (for death/seriosus injury, up to twice this amount).
- Arbitration Caps: If both sides agree to arbitration, then $250,000 non-economic caps ($125,000 cap if claimant's injuries result in 50% reduction in capacity to enjoy life); $350,000 cap if the claimant rejects the offer to arbitrate
- Punitive Damages Caps: The award may not exceeded $500,0000 or 3? compensatory damages, whichever is greater.
- Higher Burden of Proof for Punitive Damages: The BOP is "clear and convincing", evidence thet the doctor was personally guilty of intentiona misconduct/gross negligence.
- Frivolous Cases/57.105 Sanctions: Sanctions against patient and patient's attorney for bringing frivolous cases.
- Attorney Certification/Sanctions: Patient's attorney shall make a reasonable investigation to insure that theare is a good faith belief of negligence, including a certificate of counsel and written opinion from an expert finding negligence. If the patient's attorney did not sign the certificate in good faith and the case is baseless, the court shall award attorney's fees/costs against patient's counsel and submit the matter to the Florida Bar.
- Sports Doctors Immunity: Protection for physicians whi render care to athletes before athletic event or in emergency treatment.
- Standart of Care: "Prevailing standard of care", which is higher standard than negligence.
- Expert Witness Requirements: Only an actively practicing doctor can testify against another doctor.
- Immunity for Medical Review Committee: Committees that review internal medical safety are imune.
- Pre-Suit Requirements: There is a 90-day pre-suit sxreeming requirement, including informal discovery.
- No Wrongful Death Claim for Unmarried Adult: If an adult dies withiut spouse or child under 25, there is no med mal claim
- Statute of Limitatilons: 2-year SOL for med mal claims.
- Consent: Signed consent form raises a presumption of patient consent to procedure.
- Mandatory Mediation: Court shall order mediation 120 days after filing suit and a settlement conference 3 weeks before trial.
Other protections available to Florida doctors and hospitals:
- Remittitur: If excessive, the Court can reduce the verdict.
- Collateral Source Setoffs: Awards are reduced by amounts available to patient (e.g, Social Security benefits).