A doctor or hospital in Miami-Dade hurt me. Is that malpractice?
It is medical malpractice in Florida if a doctor, nurse, hospital, or other provider did something a reasonably careful provider in the same specialty would not have done, or failed to do something they would have done, and that failure caused you harm (Fla. Stat. § 766.102). A bad outcome alone is not malpractice. Florida requires a written opinion from a qualified medical expert before a claim can be filed, and a 90-day presuit investigation period (Fla. Stat. § 766.106), and the deadline is generally two years from when you knew or should have known of the injury (Fla. Stat. § 95.11).
Wolfson & Leon has handled medical malpractice cases in Miami-Dade County since 1963. The consultation is free, in English or Spanish, and there is no fee unless the firm recovers money for you.
What has to be proven in a Florida medical malpractice case?
Four things: that the provider owed you a duty of care; that the provider breached the "prevailing professional standard of care," meaning the level of care recognized as acceptable by reasonably prudent similar providers (Fla. Stat. § 766.102(1)); that the breach caused your injury; and that you suffered damages. The standard of care is proven through the testimony of a medical expert in the same or a similar specialty. Wolfson & Leon obtains your complete records and has them reviewed by an expert before deciding whether a case can be brought.
What is Florida's presuit process, and why does it take so long?
Before a malpractice lawsuit can be filed, Florida requires the injured person to conduct a reasonable investigation, obtain a verified written medical expert opinion that there are reasonable grounds for a claim (Fla. Stat. § 766.203), and serve a notice of intent on each defendant. The defendants then have 90 days to investigate and respond, during which the statute of limitations is tolled (Fla. Stat. § 766.106). This process is mandatory and technical; a mistake in it can end an otherwise good case. It also means malpractice cases take longer to prepare than car accident cases.
How long do I have to bring a medical malpractice claim in Florida?
Two years from the date you discovered, or with reasonable diligence should have discovered, the injury, and in no event more than four years from the date of the malpractice itself (the statute of repose), except that the four-year limit does not apply to a child before their eighth birthday, and fraud or concealment by the provider can extend it to seven years (Fla. Stat. § 95.11). Because the presuit process must be completed before suit, do not wait until near the deadline to call.
What kinds of medical errors lead to claims in Miami-Dade?
Failure to diagnose cancer, stroke, heart attack, or infection in time; surgical errors including wrong-site surgery and retained instruments; anesthesia errors; medication and pharmacy errors; birth injuries; failure to monitor a patient after surgery; and emergency room discharge of a patient who should have been admitted. Cases arise from every kind of facility: hospitals in and around Hialeah, outpatient surgery centers, clinics, and nursing homes.
What if my family member died because of medical negligence?
A wrongful death claim based on medical negligence follows the same presuit rules, plus Florida's Wrongful Death Act. Florida law restricts who can recover pain-and-suffering damages when the death was caused by medical negligence: under Fla. Stat. § 768.21(8), adult children (25 or older) and parents of an adult child generally cannot recover those damages, though a surviving spouse and minor children can, and medical and funeral expenses and lost support remain recoverable. Wolfson & Leon explains honestly on the first call how these rules apply to your family.
What compensation can I recover in a medical malpractice case?
A patient injured by medical negligence can recover economic damages, including past and future medical care, lost income, and the cost of care needed because of the injury, and non-economic damages for pain, suffering, and loss of enjoyment of life. Florida's statutory caps on non-economic damages in personal injury malpractice cases were struck down by the Florida Supreme Court in 2017 (North Broward Hospital District v. Kalitan). Different rules apply to claims against government hospitals, which are subject to sovereign immunity limits, and to wrongful death claims under Fla. Stat. § 768.21(8). Because malpractice cases require expert testimony and a mandatory presuit process, the cost of bringing them is high, and Wolfson & Leon evaluates whether the likely recovery justifies it before recommending that you proceed.
What mistakes hurt a medical malpractice claim in Florida?
- Waiting to investigate. The two-year limitations period runs from discovery, and the mandatory presuit process takes months; a late start can end the case.
- Confronting the provider or signing anything they offer before speaking with a lawyer.
- Not requesting your complete records promptly under Fla. Stat. § 456.057; records can be amended and details lost.
- Assuming a bad outcome is malpractice. It may be, or it may be a known risk; an expert review is what tells the difference.
- Skipping follow-up care with a different provider, which both protects your health and documents the injury.
Key facts
- The standard of care is what a reasonably prudent similar provider would do under the circumstances. Source: Fla. Stat. § 766.102(1)
- A verified written expert opinion is required before a claim can be brought. Source: Fla. Stat. § 766.203
- A notice of intent triggers a mandatory 90-day presuit investigation period. Source: Fla. Stat. § 766.106
- Two years from discovery to bring a claim; four-year repose; up to seven years for fraud or concealment. Source: Fla. Stat. § 95.11
- Adult children and parents of an adult child generally cannot recover pain-and-suffering damages for a death caused by medical negligence. Source: Fla. Stat. § 768.21(8)
Frequently asked questions
How do I know if what happened to me was malpractice or just a bad result?
You usually cannot know without a medical expert reviewing the records, and neither can a lawyer at the first call. What Wolfson & Leon can do at the first call is listen, tell you whether the facts are worth investigating, and, if so, obtain the records and have them reviewed at no cost to you.
Do I need my medical records before I call?
No. You have a right to your records under Fla. Stat. § 456.057, and Wolfson & Leon requests them for you with your authorization. If you already have discharge papers or test results, have them handy.
Will I have to testify against my doctor?
If the case goes to trial, you would testify about what happened to you. Most malpractice cases resolve before trial. The expert testimony about the standard of care comes from another physician, not from you.
Is there a cap on what I can recover in a Florida malpractice case?
The Florida Supreme Court struck down the statutory caps on non-economic damages in personal injury malpractice cases in 2017 (North Broward Hospital District v. Kalitan). Separate limits apply to claims against government hospitals and to certain wrongful death claims. Wolfson & Leon explains which rules apply to your situation.
What happens when you call
A person answers, not a recording
Call (305) 285-7071 any time. A person from the firm picks up, in Spanish if you prefer. If it is the middle of the night, we take your details and an attorney calls first thing.
We ask what happened, about 15 minutes
When and where it was, whether you were treated, whether there is a police report, and whether an insurer has already called you. You do not need papers in front of you.
We tell you honestly whether we can help
If you have a case we can take, we explain the next steps and what not to do in the meantime. If you do not, we tell you that too, and who else to call.
If you hire us, you pay nothing up front
The fee is a percentage of what is recovered, explained in writing before you sign. If we recover nothing, you owe no fee. We can come to your home or the hospital if you cannot get to the office.
No articles on this topic yet. Call us and we will answer your question directly.