Definitions to help you understand the Florida law and rules:
Health Care Providers – Which health care providers can a person file a lawsuit against for medical negligence?
Besides Medical Doctors (M.D.) and Doctors of Osteopathy (D.O.), there are other health care providers that can be liable for medical negligence or malpractice. The licensure of healthcare professionals can be found at FL DOH MQA Search Portal | License Verification (state.fl.us).
For example, certain health care providers have limitations upon their licensure as to what treatment each can lawfully perform. Some practitioners use slick advertising, social media, or internet websites to hide from the public the fact that they are NOT MEDICAL DOCTORS. It is the best practice to investigate the credentials of your doctor prior to electing to undergoing surgery. Patients should thoroughly check the credentials of their doctors whenever treatment or surgery is considered. Patients should always consider obtaining a second opinion prior to elective surgery.
The following is the general rule but there are exceptions where individuals have more than 1 degree accomplishment.
Podiatrists – Patients should understand that a podiatrist is NOT a Medical Doctor (M.D.). Podiatrists are NOT orthopedic doctors or orthopedic surgeons. While podiatrists can use the term Dr. legally, often it is assumed that all doctors are Medical Doctors. Podiatrists do NOT go to Medical Schools but go to Podiatry schools. Podiatrists are limited by Florida Statute 466.003 to the surgical treatment of ailments of the human foot and leg, limited anatomically to that part below the knee. Podiatrists cannot lawfully perform amputation of the foot or leg in its entirety. A podiatric physician may prescribe drugs that relate specifically to the scope of practice authorized herein. While podiatrists can supervise a medical assistant, podiatrists are not permitted to supervise a Physician’s Assistant.
Chiropractors – Patients should understand that a chiropractor is NOT a Medical Doctor (M.D.). While chiropractors can use the term Dr. legally, often it is assumed that all doctors are Medical Doctors. Chiropractors do NOT go to Medical Schools but go to chiropractic schools. Many chiropractors do not have any hospital privileges. Under Florida Rule 64B2-17.0025, all chiropractic physicians are explicitly prohibited by Chapter 460.403, Florida Statutes from prescribing or administering to any person any legend drug. A legend drug is defined as a drug required by federal or state law to be dispensed only by prescription. For the purpose of this rule, any form of injectable substance is beyond the scope of practice for chiropractors.
Dentists – A dentist is typically not a Medical Doctor (M.D.). Dentists attend dental school rather than medical school.
Hospitals – Hospitals can be sued directly for negligence if their employees, agents, or others directly affiliated with the facility are negligent in the care and treatment provided to patients. Hospitals can also be vicariously liable for negligent acts performed; for example, independent contracting physicians in certain circumstances.
Physician’s Assistants – PAs are medical professionals who diagnose illness, develop, and manage treatment plans, and more. These health care providers often work in conjunction with Medical Doctors and Doctors of Osteopathy (D.O.) to coordinate patient care. Each supervising physician using a physician assistant is liable for any acts or omissions of the physician assistant acting under the physician’s supervision and control.
Optometrists – An optometrist is a Doctor of Optometry (O.D.) and not a Medical Doctor (M.D.). These professionals are a primary source of typical eye examinations. Ophthalmologists are medical doctors that specialize in the care of more complex eye disorders and perform eye surgery if required.
Nurses – A nurse can be personally responsible for some acts of negligence but typically, the health care provider that employs the nurse will be vicariously liable for the nurse’s conduct.
Medical Negligence – We all makes mistakes. But in the world of medicine, a bad or undesired outcome is not always medical negligence. In legal terms, medical negligence occurs when a health care provider, doctor, podiatrist, nurse, for example, practices below the professional standard of care and that causes an injury to a patient.
Standard of Care – This is a term of art when considered in the Florida Statutes. Section 766.102 of the Florida Statutes describes the standard of care owed by a healthcare provider as the level of care, skill, and treatment that is recognized as appropriate by other, similarly positioned healthcare providers, given the overall circumstances. For example, your podiatrist or foot specialist would be expected to act in accordance with the credentials, knowledge and skills generally demanded of podiatrists within Florida.
Breach of the Standard of Care – One of the primary elements of proof in a medical malpractice case is that the doctor or podiatrist breached or broke the standard of care in treatment or surgery to a patient. There must be evidence that the doctor, podiatrist, or other health care provider violated the standard of care which requires a medical expert practicing in the same field as the doctor who committed the alleged negligent act and obtain a sworn affidavit from that expert doctor.
Statute of Limitations – Under Florida law, ordinary negligence causes of action are subject to a four-year statute of limitations. But the State of Florida in Statute 95.11(4) (b) has reduced the applicable Statute of Limitations for medical malpractice to only 2 years. Florida requires a person to file a malpractice suit within two years of the date from which you discovered the harm – or two years from when you reasonably should have discovered the harm from the negligence. Florida’s Statute of Repose mandates a total deadline of four years from the date of the actual alleged medical malpractice event to file a malpractice claim. There are exceptions as to children and cases of fraud.
Proximate Cause – This is another element of medical malpractice a Plaintiff must prove. Simply, if the doctor’s negligent act did not cause the injuries complained of, there is not a successful causation claim. A Plaintiff must link the negligence of the doctor to the damages alleged.
Damages – Clients always ask what their case is worth or how much are we suing for? There is no specific response as everyone’s case provides different variables to incorporate into a damages calculation. Damages are typically divided into economic and non-economic damages. Economic damages include lost wages, past and future, lost earning potential, medical expenses, past and future, necessary medications, surgeries, adaptive devices (for example, prosthetic devices, wheelchairs, and other medical equipment), and life care expenses. Non-economic damages include pain, suffering, inconvenience, loss of enjoyment of life, etc.
Malpractice Insurance – Just as Floridians must have insurance to cover motor vehicle accidents, doctors and podiatrists have medical malpractice insurance to protect them against potential claims. Florida’s legislature mandates all doctors carry insurance or personal guarantees to help protect patients but often doctors and podiatrists elect to purchase malpractice insurance in amounts that are insufficient to cover some clients’ damages. In most medical malpractice cases, the insurance company for the healthcare provider is the one who pays out damages.
Vicarious Liability – Under the legal doctrine of “respondeat superior,” an employer may be held liable for the negligent acts of its employee, if the employee was acting within the scope of his or her employment when the negligent act or omission occurred.
Other Sources – For additional definitions and explanations, please go to https://footlaw.com/faq/. For further information as to typical foot deformities and conditions, please go to https://footlaw.com/glossary/
What must a Plaintiff prove to be successful?
These elements include:
- A formal doctor-patient relationship – duty to the patient
- The doctor or medical professional acted negligently or breached the standard of care
- Proximate cause or a link between the negligent act and the damages sustained
- The patient was injured – damages
Start an investigation:
This is always the 1st step taken by your attorney and can be the most important. Your attorney will collaborate with you in gaining access to all of your medical records. Even in podiatry cases, the doctor’s defense attorney will request or subpoena medical records which the client sees as irrelevant, such as a women’s gynecology records. Rarely do Judges deem those medical records not discoverable.
To be clear, you, as a patient, have every right to obtain every piece of paper, xray, report, consultation etc. contained within your doctor’s files, even though technically the records belong to the doctor. Often the doctor will be hesitant or refuse to provide the records to a patient. In those cases, Florida Statute section 766.204 provides an answer. If the doctor still refuses to provide those records to you, you can file an official complaint at Florida Health Care Complaint Portal (state.fl.us).
Once the medical file information has been gathered, your lawyer will need to obtain a good faith affidavit from a qualified medical expert or specialist. The medical expert will review your records to determine whether or not they believe the care the victim received deviated from the national standards of care. If the expert concludes the doctor deviated from the standard of care and that the deviation or negligence proximately caused damages, your case can proceed further.
If this initial expert opinion is negative, your attorney must find another expert to opine or your case cannot move ahead.
Entering into a Pre-Suit – Florida Statute 766.106 and 766.203
To commence presuit, your attorney will gather all of the statutorily required disclosures, and send them to each of the doctors whom your expert has opined committed negligence. This is the Notice of Intent to file a malpractice lawsuit. A lawsuit cannot be filed prior to the presuit requirements being satisfied. The presuit period is a 90-day timeframe which tolls or stops the Statute of Limitations from running, and where the doctors or providers whom you are pursuing a claim against must conduct their own good faith investigation. The doctor and the assigned attorney from the doctor’s malpractice insurer have an absolute duty to investigate a patient’s presuit claim during the 90 days. Both the patient and the doctor must engage in good faith discovery or the exchange of evidence. In addition, the parties can conduct an unsworn statement, which is essentially an informal question and answer experience. The doctor’s attorney can request a physical or mental examination of the claimant be taken. No information developed during presuit can be used in any later litigation. See Florida Statute 766.205(4). If either party fails to follow the presuit notice, investigation, and discovery procedures, the court may dismiss any claims or defenses.
Ending of the 90-day presuit period:
The defendant who believes there are no reasonable grounds for a claim of medical malpractice must also submit a written verified medical opinion, corroborating such a position and mail it with the notice of rejection to the patient’s attorney. At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:
1. Rejecting the claim;
2. Making a settlement offer; or
3. Making an offer to arbitrate in which 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.
The emphasis of presuit is to determine which defendants are truly liable for negligence as health care providers and to weed out frivolous cases. The 90-day period is also intended to encourage settlement prior to initiating litigation if possible. Despite this, most cases are rejected by the doctor’s attorneys.
Florida Statute 766.106 requires the patient’s attorney provide the client with the exact nature of the response from the doctor and doctor’s attorney, terms of any settlement offer, legal and financial consequences of accepting or rejecting the offer, evaluation of time and likelihood of success on the claim and an estimate of the court costs and attorney fees to proceed through trial.
What happens now:
After presuit ends and you have more than likely received a rejection of your claim from the doctor’s attorney and reviewed the notice from your own attorney as to proceeding ahead with a lawsuit, what are your options?
- You can elect to drop any claim you have alleged. Depending upon your agreement and representation contract with your attorney, there might be costs you are responsible to reimburse plus other matters. This requires a conference with your attorney.
- You can consider voluntary binding arbitration pursuant to Florida Statute 766.207. The Statute at paragraph (2) explains the process: Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant. The evidentiary standards for voluntary binding arbitration of medical negligence claims shall be as provided in ss. 120.569(2)(g) and 120.57(1)(c). The arbitration decision is binding on both parties.
- You, after discussion with your attorney, and assuming all presuit requirements have been satisfied, can have your attorney file an official lawsuit in Florida Court. If your attorney has issues with the conduct of the doctor’s presuit investigation not being in good faith or inadequate, this can be raised with the Judge according to Florida Statute 766.206. If the Court determines that either the claim or denial is baseless, it will dismiss the claim or strike the defendant’s pleadings. Whoever made the baseless claim is responsible for all attorney’s fees and costs associated with the pre-filing process. If the defendant denies your claim and the Court strikes their denial, they must pay for your legal expenses.
The above is a simplified pattern that transpires during the initial stages of a medical malpractice investigation. Every case is different and the manner in which lawyers manage their cases and clients similarly vary. If you find your lawyer acts differently than the above description, it can be perfectly normal.
The author of the above used podiatrists as primary examples because for the past 26 years, his law office has focused almost exclusively in the practice of podiatry negligence or malpractice. For further information, please review www.footlaw.com.
The 2nd installment of this article will outline what to expect once the lawsuit is filed.