Frequently Asked Questions

What constitutes medical malpractice under Florida law?

Medical malpractice occurs when a health care provider commits a breach of the prevailing professional standard of care –¬†medical negligence¬†– and thereby causes injury to a patient. Examples would be when a health care provider does something that is a breach of the prevailing professional standard of care, or fails to do something that is required by the prevailing professional standard of care.

Who can sue for medical malpractice under Florida law?

When a patient is injured due to medical malpractice, the patient can bring suit. Many times, the patient’s spouse and/or children may also have a claim. When a patient dies as a result of medical malpractice, the patient’s estate may file suit under the Florida Wrongful Death Act. If the patient was an adult, the persons permitted to recover for medical malpractice under the wrongful death law are the patient’s spouse and the patient’s children who are under the age of 25 years. If the patient was a child, the child’s parents may recover under the wrongful death law.

How long do I have to bring a lawsuit for medical malpractice in Florida?

Florida law imposes time limits – called the Statute of Limitations – as to when a plaintiff must bring their medical malpractice case against a health care provider. The Statue of Limitations in Florida is governed by Section 95.11(4)(b), Florida Statutes.

Section 95.11(4)(b), Florida Statues provides that an action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred, or within two (2) years from the time the incident is discovered or should have been discovered with the exercise of due diligence. However, in no event shall the action be commenced later than four (4) years from the date of the incident or occurrence out of which the cause of action accrued, except that the four-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

Section 95.11(4)(b) also provides that in those actions where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended two (2) years from the time the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date of the incident giving rise to the injury, except that the seven-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

The Statute of Limitations is complex, and the operation of the Statute of Limitations to bar a case is based largely on the facts of each individual case. However, you should consult with an attorney immediately if you think your potential claim could possibly have a Statute of Limitations problem.

What must I do to prove my case?

A plaintiff in a medical malpractice case must prove that the health care provider was negligent, and that the health care provider’s negligence was the cause of the plaintiff’s damages. Failure to prove any of these elements is fatal to the success of the case.

A plaintiff in the medical malpractice case must prove, by the greater weight of the evidence, that the alleged actions of the health care provider were a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care as defined in the Florida Statutes as “that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

After proving that the health care provider committed a breach of the prevailing professional standard of care, a plaintiff must prove, by the greater weight of the evidence, that the breach of the standard caused or contributed to the injuries suffered by the plaintiff.

How do I go about paying my attorney for his or her time and expenses?

Our law firm handles medical malpractice cases on a contingency fee basis which is based upon guidelines approved by the Florida Supreme Court. Under said guidelines, Masterson, Hoag & Smith, P.A., receives a percentage of the recovery made on behalf of the client, as a result of the successful prosecution of the case. We do not require the client to pay or defray any of the expenses of bringing and developing the case until such time as a recovery is made. At that time, those expenses will be deducted from the settlement proceeds.

The prosecution of a medical malpractice case is an expensive endeavor. The expense involved includes obtaining medical records and x-rays, consultations with expert witnesses, the cost of filing and preparing a case for trial, and the expense of presenting the case at trial.