Florida Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice action must be brought within two years from the date of the incident or from the date when the incident was or should have been discovered. Fla. Stat. Ann. § 95.11(4)(b) (West 1982 & Supp. 1998). In no event may an action be commenced more than four years after the incident giving rise to the action, except that this four-year period will not bar an action before the claimant’s eighth birthday. Id. Even in the case of fraud, concealment, or intentional misrepresentation preventing discovery, there is a maximum period of seven years (or a child’s eighth birthday). Id. A claimant’s incompetency tolls the statute, but the action must be brought within seven years of the incident. Fla. Stat. Ann. § 95.051(d) (West 1992). The constitutionality of the four-year statute of repose was upheld most recently in Damiano v. McDaniel, 689 So. 2d 1059 (Fla. 1997).

The statute of limitations for wrongful death is also two years, with time running from the date of death. Fla. Stat. Ann. § 95.11(4)(d) (West 1982 & Supp. 1998). However, where malpractice causes death, the malpractice statue applies. Arthur v. Unicare Health Facilities, Inc., 602 So. 2d 596, (Fla. Dist. Ct. App.), cert. denied, 613 So. 2d 4 (Fla. 1992).

Contributory or Comparative Negligence

Florida adheres to the pure form of comparative negligence. Fla. Stat. Ann. § 768.81 (West 1997). Under the Florida rule, a claimant’s award is diminished in proportion to the claimant’s fault, but the claimant’s fault, no matter how great, will not act as a bar to recovery. Id.

Joint and Several Liability

In any action for professional negligence accruing on or after July 1, 1986, wherein damages exceed $25,000, liability is apportioned among the defendants on the basis of each defendant’s degree of fault, and each is severally liable. Fla. Stat. Ann. § 768.81 (West 1997). On application of any party, the jury shall apportion liability among all culpable persons or entities including non-defendants. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).

There is one important exception, however. Any tortfeasor whose liability exceeds that of the claimant is jointly and severally liable for the claimant’s economic damages. §768.81 (West 1997). This exception does not apply to the state university system or to teaching hospitals, for whom joint liability has been abolished. Fla. Stat. Ann. §§ 766.112 and 768.81(6) (West 1997).

Contribution

In Florida, joint tortfeasors are afforded a right of contribution. Fla. Stat. Ann. § 768.31 (West 1997). A settling tortfeasor, however, is not entitled to contribution from a person whose liability was not extinguished by the settlement, or for an unreasonable settlement. An action for contribution may be brought by motion within the original action or in a separate proceeding. The joint tortfeasors’ relative degrees of fault provide the basis for allocating liability in contribution. Id.

Vicarious Liability

Florida has, by judicial decision, adopted what it calls the theory of corporate negligence to hold hospitals vicariously liable for the acts of non-employee physicians in medical malpractice cases. It holds that because a hospital is in a superior position to supervise and monitor physician performance, and is the only entity that can realistically provide quality control, it has an independent duty to select and retain competent independent physicians. This liability attaches only when the hospital fails to exercise due care in the selection and retention of the physicians on its staff. Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989).

In other cases, Florida courts have recognized that hospitals may be liable for the acts of non-employee physicians on the theories of joint venture (i.e., when there is a community of interest in a common purpose, joint control, sharing of profits, and a duty to share losses), Arango v. Reyka, 507 So. 2d 1211 (Fla. Dist. Ct. App. 1987), and apparent agency. Webb v. Priest, 413 So. 2d 43 (Fla. Dist. Ct. App. 1982).

Expert Testimony

In his notice of intent to initiate medical malpractice litigation, a claimant must include a verified written medical expert opinion corroborating that there are reasonable grounds to believe that each named defendant was negligent. Fla. Stat. Ann. § 766.203 (West 1997). A defendant who denies the existence of reasonable grounds for the claim must also provide a corroborating verified written medical expert opinion. Id. Unless the alleged negligence is obvious to a layman, expert testimony is necessary to establish a claim for medical malpractice. Reynolds v. Burt, 359 So. 2d 50 (Fla. Dist. Ct. App. 1978).

Damage Caps

Punitive damages in excess of three times the claimant’s compensatory damages are presumed to be unreasonable, and the court must order a remittitur unless it determines by clear and convincing evidence that the amount is not excessive. Fla. Stat. Ann. § 768.73 (West 1997 & Supp. 1998). Florida’s voluntary arbitration scheme also provides a cap on non-economic damages under certain circumstances, as described below under Arbitration.

Statutory Cap on Attorneys’ Fees

The Supreme Court of Florida has declared that attorneys’ fees in excess of the following amounts are presumed unreasonable:

  1. In cases that settle before filing an answer or appointing an arbitrator, 33 1/3 percent of any recovery up to $1,000,000, 30 percent of any recovery between $1,000,000 and $2,000,000, and 20 percent of any excess over $2,000,000.
  2. In cases that settle subsequently or go to trial, 40 percent of any recovery up to $1,000,000, 30 percent of any recovery between $1,000,000 and $2,000,000, and 20 percent of any excess over $2,000,000.
  3. In cases in which liability is admitted and only damages are contested, 33 1/3 percent of any recovery up to $1,000,000, 20 percent of any recovery between $1,000,000 and $2,000,000, and 15 percent of any excess over $2,000,000.
  4. In cases that are appealed an extra 5 percent over what is otherwise allowed.

Fl. Atty. Conduct Reg. 4-1.5(f)(4)(B) (West Supp. 1998).

Periodic Payments

Upon the request of any party to a medical malpractice action, the court must order that any future economic damages in excess of $250,000 be made as periodic payments (rather than a lump sum). The court may require security and must deduct collateral benefits. Fla. Stat. Ann. § 768.78(2) (West 1997 & Supp. 1998).

Collateral Source Rule

In Florida, the court must reduce a claimant’s damages by the amounts paid to the claimant from collateral sources. Fla. Stat. Ann. § 768.76 (West Supp. 1998). However, the court must also receive evidence pertaining to the cost of such benefits to the claimant as an offset to the reduction. No reduction shall apply for any collateral sources to which a right of subrogation exists. Id.

Pre-Judgment Interest

Florida does not allow the award of pre-judgment interest to personal injury claimants. Smith v. Dunning, 467 So. 2d 465 (Fla. Dist. Ct. App. 1985).

Patient Compensation Funds and Physician Insurance

Florida has established two patient compensation funds. The Florida Birth-Related Neurological Injury Compensation Plan, in cases to which it applies, is the exclusive means of obtaining compensation for an important class of severe, birth-related injuries. The Florida Patient Compensation Fund is a system of state-sponsored excess insurance for medical malpractice liability.

The Florida Birth-Related Neurological Injury Compensation Act (“NICA”) provides compensation for birth-related neurological injuries without regard to the negligence of any health care provider. Fla. Stat. Ann. § 766.303 (West 1997 & Supp. 1998). The act applies to births occurring on or after January 1, 1989. Id. The term “birth-related neurological injury” means:

injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

Fla. Stat. Ann. § 766.302(2) (West 1997). Since recovery under NICA precludes recovery by means of a medical malpractice jury trial, whether an injury meets this definition is often litigated. The definition excludes by its terms premature babies and those whose injury results from care prior to labor and delivery. A child must be both mentally and physically impaired to qualify. Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div. of Admin. Hearings, 686 So. 2d 1349 (1997).

To participate, health care providers must simply pay a yearly assessment. Fla. Stat. Ann. § 766.314 (West 1997 & Supp. 1998). Actions under the plan must be commenced within five years from the infant’s birth. § 766.313 (West 1997 & Supp. 1998). Physicians are not required to participate in the plan. Fla. Stat. Ann. § 766.314 (West 1992). However, the fund will not cover a birth-related injury if the delivering physician is not a participant. Fla. Stat. Ann. § 766.309 (West 1997 & Supp. 1998).

Under the Florida Patient Compensation Fund statute, hospitals are required to participate in the fund by paying a yearly fee and obtaining primary insurance (or otherwise demonstrating financial responsibility) of $250,000 per claim or $500,000 per occurrence (which is indexed for inflation after January 1, 1990). Fla. Stat. Ann. § 766.105 (West 1997 & Supp. 1998). Hospitals operated by units of government or meeting certain financial responsibility requirements ($2,500,000 of insurance coverage) are exempt. Id. These “entry level” amounts also apply to physicians who choose to participate in the fund. The fund then affords coverage to its participants, other than hospitals, of either $1,000,000 per claim with a $3,000,000 annual aggregate, or $2,000,000 per claim with a $4,000,000 aggregate. (These limits include the entry limit amounts.) Id. A hospital’s limits under the fund are $2,500,000 per claim with no annual aggregate (entry level limits included). Id. A participating health care provider still remains liable for damages in excess of the fund’s coverage and for punitive damages. Id. The entry level insurer is responsible for providing a defense. Id.

Immunities

The State of Florida and its counties, municipalities, and other political subdivisions no longer enjoy sovereign immunity. Fla. Stat. Ann. § 768.28 (West 1997 & Supp. 1998). The statutory waiver of immunity, however, is limited to $100,000 per claimant and $200,000 per occurrence. Id. Further, neither the state nor any of its political subdivisions is liable for punitive damages. Id. Litigants who obtain an unenforceable judgment in excess of the cap can petition the state legislature for a “claim bill,” that is, a private bill granting compensation in excess of the cap. A small number of these are routinely granted every year.

A Florida statute allows independent contractors to share in this sovereign immunity, and thus to enjoy the benefits of the low limits on damages. Fla. Stat. Ann. § 766.1115 (West 1997 & Supp. 1998) is specifically designed to allow those providing medical services to the indigent at county hospitals and the like to be considered agents of the immune entity, and thus to avoid being the “deep pocket” defendant in cases where co-defendants’ liabilities will be capped. Id. The contractor must meet risk management standards, pay his own legal fees, and give notice of the arrangement to every patient. Id. There are no reported decisions yet in which the cap has been applied to a contractor under this section. However, in a case originating prior to the effective date of § 766.1115, the Florida Supreme Court held that doctors who contracted to work at a children’s clinic run by the state at a county hospital were agents of the state under common law criteria having to do with the degree of control exercised over them, and thus possessed limited liability under § 768.28. Stoll v. Noel, 694 So. 2d 701 (Fla. 1997).

Claims against the state or its political subdivisions must be made in writing to the Department of Insurance within three years from the date of the occurrence, and a complaint must be filed within four years. Id. The State Tort Claims Act also provides that attorneys’ fees in such actions may not exceed 25 percent of the judgment or settlement amount. Id. State employees are immune from suit for injuries caused in the course of their employment provided the employee does not act in bad faith or a willful wanton manner. Id.

Arbitration

Florida does not require that medical malpractice actions be referred to an arbitrator, although judges are authorized to refer cases to non-binding arbitration. Fla. Stat. Ann. § 766.107 (West 1997 & Supp. 1998).

The important arbitration program in Florida is the system of voluntary binding arbitration for the determination of damages, which basically gives defendants an option to limit non-economic damages in return for admitting liability. Arbitration, once chosen, is the exclusive means by which to seek recovery. Id. If a defendant refuses to accept the claimant’s offer to arbitrate, the claimant, if successful at trial, is entitled to pre-judgment interest and up to 25 percent of the award in attorneys’ fees. Fla. Stat. Ann. § 766.209 (West 1997 & Supp. 1998). If a claimant refuses to accept a defendant’s offer to arbitrate, his recovery will be limited to economic damages (but only 80 percent of lost wages) plus no more than $350,000 in non-economic damages. Id. If the claimant does accept, his recovery will be limited to economic damage (but only 80 percent of lost wages) plus no more than $250,000 in non-economic damages, plus attorneys’ fees of fifteen percent. The damage cap in the arbitration statute has been held to be constitutional. University of Miami v. Echarte, 618 So. 2d 189 (Fla.), cert. denied, 510 U.S. 915 (1993). A recent District Court of Appeal decision held that an arbitrator can award no more than $250,000 for a single wrongful death claim, regardless of the number of claimants. St. Mary’s Hospital v. Phillipe, 699 So. 2d 1017 (Fla. Dist. Ct. App. 1997). It certified to the Supreme Court the question whether the cap on non-economic damages of $250,000 per incident in a voluntary arbitration under § 766.207 applies to each beneficiary under the Wrongful Death Act or applies in the aggregate to all beneficiaries.

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Revision Date: February 6, 1998