How to Know If You Have a Medical Malpractice Case

By Michael Levine & Stephen Cain

“Do I have a medical malpractice case?”

This is a common question our clients often ask us.

Under Florida law, malpractice cases must be handled differently from other cases. As a recent Florida appellate court explained: “Statutory restrictions on a medical malpractice claim make a plaintiff’s litigation path significantly more formidable than a claim that sounds in ordinary negligence.”

In other words, medical malpractice claims are harder for plaintiffs to pursue and there are many legal pitfalls for inexperienced attorneys. This is why it is critical to hire lawyers who know the medical malpractice laws and have experience prosecuting these claims.

The First Hurdle for Plaintiffs to Overcome

Unlike other personal injury or wrongful death cases, such as car accidents or premises liability cases, Florida law requires that the victims of medical malpractice go through what is known as the “presuit process.”

Florida’s presuit process requires that, before we can file your lawsuit, we perform an investigation of the case, consult with expert witnesses, and provide the defendants with a written notice of our intent to sue them. At that time, and before we can file suit, the defendants have 90 days to investigate the claim. Significantly, if your attorney fails to properly comply with Florida’s presuit requirements, your case may be forever barred.

During our investigation, we review the pertinent medical records and consult with expert physicians and nurses from around the country in a variety of specialties. Ultimately, Florida’s presuit laws require that we obtain written opinions from our experts confirming that there is a basis to bring a lawsuit.

Working with qualified and knowledgeable experts is crucial to our clients’ success.

Smaller Windows of Opportunity

Beyond the presuit requirements, medical malpractice cases are also different because they have a shorter statute of limitations (two years) compared to a four-year statute of limitations for general negligence claims. Given the time required to request records, review your case, and investigate your claim, it is important that you do not delay in consulting with an attorney.

General Negligence vs. Medical Negligence

It’s also important to know that not all injuries or deaths that occur in the hospital setting are medical malpractice cases, but instead may be considered general negligence cases. So, how do you know if your case is a medical malpractice case as opposed to a general negligence case? The determinative factor is whether your case results from the provision of medical care or services, requiring professional judgment or skill.

A recent case, Simmons v. Jackson Memorial, illustrates this distinction.

In that case, the plaintiff was a resident of a psychiatric facility operated by a hospital. Another resident came into the plaintiff’s room and beat him with a metal handrail. The plaintiff believed that this was not a medical malpractice case but instead sued the hospital alleging that it failed to provide him adequate security and failed to train its staff to recognize and react to emergency situations.

The hospital disagreed and tried to dismiss the plaintiff’s case for failing to comply with Florida’s presuit process. The trial court agreed and dismissed the case. Fortunately for the victim, Florida’s Third District Court of Appeal reversed, reinstating the victim’s case. The Court ruled that the plaintiff did not need to comply with the presuit requirements because the victim was not injured as a result of medical care or treatment.

Likewise, his case would not be bound by the two-year statute of limitations.

On the other hand, in Puentes v. Tenet Hialeah Health System, the Court ruled that a case alleging a hospital failed to follow a physician’s order regarding a patient’s diet was a medical malpractice case requiring that the patient comply with Florida’s presuit process.

How It Boils Down: Plaintiffs Need Proven Experience.

The bottom line is, medical malpractice cases in Florida present unique circumstances requiring the expertise of lawyers who have experience prosecuting these claims and understand the nuances of Florida law.

The Miami personal injury attorneys at Stewart Tilghman Fox Bianchi & Cain, P.A. have over 100 years of combine experience in the field of medical malpractice. We’ve won millions for the patients and parents who have been wronged by their medical providers. We’ve also been successful in changing hospital policies to protect patients. Holding hospitals and practitioners accountable is difficult—it takes time and resources most law firms can barely spare. Our firm stays lean for a purpose: to make sure that 100% of our firm’s resources are committed to investigating claims properly, to hiring the best experts in the field, and to committing as much time to each case as it takes.

The obstacles discussed in this blog aren’t theoretical to us—we’ve overcome these hurdles before. We’ve helped mothers with permanently injured babies hold their nurses and obstetricians accountable. We’ve helped grieving families hold negligent pharmacists and surgeons responsible for the damage they caused.

Look at our medical malpractice results here to see for yourself.

If you need help proving or determining if your losses were caused by medical malpractice, STFBC is ready to review your options alongside you. Call (305) 770-6335 or contact us online with all your questions.