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The injured patient can. If the patient is a child or an adult who can’t act for themselves, a parent or legal representative brings the claim, and if the patient has died, it’s the personal representative of the estate. Who files and who actually recovers aren’t always the same people, which is where it can get confusing.
If you or someone you love was harmed by a medical mistake, a West Palm Beach medical malpractice lawyer at Lytal, Reiter, Smith, Ivey & Fronrath can look at the records and tell you what you’re dealing with.
What has to happen before a malpractice lawsuit can be filed?
More has to happen than in an ordinary injury case. Before you can file a medical malpractice lawsuit in Florida, chapter 766 of the Florida statutes puts two hurdles in front of you.
The first is proof that the care fell below the standard of care, meaning what a reasonably careful provider would have done in the same circumstances. A bad outcome isn’t the test. Serious complications happen without anyone doing anything wrong, and sorting one from the other is what the records are for.
The second is notice. You have to put the medical professionals you plan to sue on notice first.
What is a notice of intent to initiate litigation?
A notice of intent to sue is a formal letter telling a provider you believe their care caused harm. Under Florida Statute 766.106, it goes to each prospective defendant by certified mail or another verifiable method, and it starts a 90-day pre-suit screening period.
During those 90 days, the provider and their insurance companies review everything. At the end, they can reject the claim, make a settlement offer, or offer to arbitrate damages with liability admitted. You can’t file suit until the period runs, and the statute tolls your filing deadline for the whole 90 days. The clock stops while you wait.
Why does a doctor have to review the case first?
A doctor has to review the case because Florida’s medical malpractice laws require it. Before the notice goes out, a qualified medical expert has to review the records and conclude there are reasonable grounds to believe malpractice occurred and caused harm. That opinion goes out in writing, verified, with the notice.
A medical malpractice attorney who takes your case past this point has already had a physician say the care was indefensible. Starting a malpractice lawsuit can take a while, and this step decides whether there’s a case at all.
Who brings the claim when the patient has died?
The personal representative of the estate, under Florida’s wrongful death law. The money then goes to the survivors: a surviving spouse, the children, the parents, and relatives who depended on the person for support.
Florida Statute 768.21 bars adult children from recovering for lost companionship or mental pain and suffering when the death came from medical negligence, and it bars the parents of an adult child from recovering mental pain and suffering. Economic losses stay recoverable, including lost support and funeral costs. Since this is a strict rule, it’s the first thing to check if that’s your situation. Whether a family member can sue depends on who’s left and how they’re related.
What happens with a birth injury claim in Florida?
A parent or legal guardian brings a birth injury claim. Birth injuries can come from missed signs of fetal distress or a mistake during the delivery itself, and some leave a child needing care for life.
Florida also has a no-fault program, the Birth-Related Neurological Injury Compensation Plan, which can replace a lawsuit where it applies. Florida Statute 766.302 covers injury to the brain or spinal cord from oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in a hospital, and only where the child is left permanently and substantially impaired both mentally and physically. Birth weight minimums apply, and genetic and congenital conditions are excluded. Most birth injuries don’t meet that definition.
Whether the program applies can also depend on whether the hospital and the physician gave you the required notice about it. Proving a cerebral palsy birth injury turns on the same fetal monitoring and delivery records either way.
How long does a family have to act?
Generally, two years. Florida Statute 95.11(5)(c) gives you two years from the date the incident happened, or from when it was discovered or should have been discovered, with a four-year outer limit from the incident itself. A wrongful death claim runs two years from the date of death.
Two exceptions:
- Fraud, concealment, or intentional misrepresentation that hid the injury extends the deadline two years from discovery, up to seven years from the incident
- For a child, the four-year and seven-year limits don’t bar a claim brought on or before the child’s eighth birthday
Records take time to gather, and an expert review takes longer, so earlier is better.
Find out where your medical malpractice case stands
When medical care goes wrong, you’re owed a straight answer about what happened. Our legal team will get the records in front of a physician and tell you plainly whether there’s a claim worth filing. We work on a contingency fee basis, and you pay no attorney’s fees unless compensation is recovered.
Call (561) 655-1990 or contact us online for a free case review.
