In order for you to better understand some of the basic issues involved in medical malpractice litigation, we have provided information via the following frequently asked questions and answers. Each case is different and you should not interpret the following broad statements of the law as a full and complete answer in your case.
Frequently Asked Questions
About Malpractice, Injury and Wrongful Death Claims

The legal and judicial system is something with which most people have little or no first-hand experience. The lawyer, judge, and courtroom shows that you see on television are usually not at all typical of what happens in a case or in a courtroom. The actors are usually not constrained by rules of procedure, rules of evidence, rules of professional conduct, or substantive legal principles.

It is our job as your attorneys to handle you case from beginning to end and to do the things that are legally and ethically permitted to secure for you the damages for which you are entitled. As your case progresses through our office and the legal system, you will have many questions that need to be discussed and answered on an individual basis. The following are some of the most frequently asked questions and short answers to them.

 Malpractice Claims











Injury And Wrongful Death Claims














 What is a medical malpractice claim?
1. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 How do you prove that malpractice was committed?
2. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 Is there a time limit for bringing a malpractice claim?
3. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 What is required to file a malpractice case?
4. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 How long does it take to resolve a medical malpractice case?
5. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 How much will I recover in a medical malpractice action?
6. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 What do you need to prove to win a medical malpractice case?
7. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 What type of actions by a health care provider result in successful malpractice claims?
8. A medical malpractice claim is made against a physician or other healthcare professional for injury or death to his patient or to another person to whom he owes a legal duty. The claim is based upon the physician’s failure to render care and treatment within the acceptable standard of care. This can mean that he did something that a reasonably prudent physician would not have done or that he failed to something that a reasonably prudent physician would have done.


 Are there caps on the amount of damages recoverable in malpractice actions?
9. Yes and No. In general, the answer is no. However, there are situations in which the amount of non-economic damages are capped.

First, if during the presuit screening procedures, a prospective defendant offers to admit liability and submit to binding arbitration then damages will be capped as to that defendant. If the patient accepts the offer and proceeds to binding arbitration, the cap on intangible damages is $250,000.00. If the patient refuses the offer of binding arbitration, he or she is entitled to proceed to trial, but in that event, the non-economic damages are capped at $350,000.00.

The second instance in which damages are capped are for a certain class of cases in which infants receive brain damage during the birth or delivery process. Under the Neurological Injury Compensation Act, which applies in these cases, intangible damages are generally limited to $100,000.00. However, it is not necessary to prove fault.

The third area in which damages are capped are in those cases in which governmental bodies or their employees or agents are sued. Under Florida’s Waiver of Sovereign of Immunity Act, the most that can be recovered against a governmental entity, without the legislature passing a special claims bills, or the governmental entity agreeing to a higher settlement, is $100,000.00 per claimant and $200,000.00 per occurrence.


 How much will I receive for my claim?
At the beginning of our representation, it is usually not possible to give you a very accurate evaluation of how much you will receive. The amount that we demand and ultimately recommend as a settlement to you depends upon how badly you are injured, how well you recover, how clear-cut the fault is in your case, the amount of liability insurance available, and other factors. As the case progresses, we will be happy to share our thoughts on this question and as the case progresses and more information is known our estimate will become more accurate.


 HOW LONG WILL IT TAKE TO CONCLUDE MY CASE?
Some case are concluded relatively quickly. For example, in a simple automobile accident case, it is often possible to settle the case within three months after your doctor discharges you. Many of these cases are concluded in six to twelve months. Sometimes they can be concluded very rapidly, for example, when the injury is severe and the amount of insurance available is limited. In some instances it takes longer, a lawsuit must be filed, and the case must be tried to a conclusion. You can be sure that we will move your case along as expeditiously as possible consistent with doing a through and professional job.


 WHO MAKES A DECISION ON WHETHER TO SETTLE?
You do. We will give you our analysis of your case and our recommendation, but ultimately, it is your right to make the final decision concerning settlement. Once you have made your decision, we will respect it and attempt to expeditiously carry it out.


 I WANT TO SETTLE MY CASE BUT REQUIRE THE DEFENDANT TO BE RESPONSIBLE FOR THE COST OF MY FUTURE MEDICAL CARE. CAN THAT BE DONE?
As a practical matter, that can almost never be done. When a defendant settles
a case, they are doing just that: settling. They do not want to have contingent and unknown risks and they do not want to have to keep their file open for years to come. If the case goes to trial, the jury will award a lump sum which will include an allowance for all future damages. This money can then be invested by you or a structured settlement\annuity can be arranged, so that you will receive monthly or other periodic payments as needed.


 WILL MY CASE BE SETTLED OR GO TO TRIAL?
In most cases a settlement is reached and the case does not go to trial. However, it is very important that your case be thoroughly prepared and that it be ready for trial if needed.


 WHAT SHOULD I DO AFTER AN ACCIDENT?
There are several important things that need to be done shortly after an accident either by the person who was injured, his family and friends if he is unable to act, or his attorney. These include the preservation of any physical evidence, for example, a defective product; the taking of photographs of property damage, the scene of the accident, or your injuries; getting benefits started under various types of insurance that may be available to you; resolving your property damage claim in a motor vehicle accident; and insuring that adequate medical treatment is obtained. As part of our representation, we perform most of these functions and assist you as needed with the others.


 I DO NOT HAVE AN ATTORNEY AND THE INSURANCE ADJUSTER HAS OFFERED ME A SETTLEMENT. SHOULD I TAKE IT?

That is up to you. We render legal advice on those type of issues only to our clients. However, before entering into any settlement, it is wise for you to know your legal rights and what a fair settlement is. Keep in mind that the insurance adjuster is representing his insurance company and is there to protect the insurance company’s interests. Although the adjuster will usually be quite courteous and professional, he is looking out for his client’s best interests and he may not be offering a reasonable settlement.


 CAN WE GIVE YOU AN ADVANCE OR LOAN AGAINST YOUR CASE?
No. Rule of Professional Conduct 4-1.8(e) specifically provides that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay courts costs and expenses of litigation on behalf of the client.

Any attorney who promises to loan you money or make advance payments against your settlement if violating this rule and subjecting himself to discipline by the Florida Bar.

We understand that following a serious accident or death, our clients can experience a financial hardship. Sometimes there is disability or worker’s compensation insurance, but often there is not. Seriously injured people often have to rely upon the help of their family and close friends and similar sources. There are small loan companies and private investors that will sometimes make a small loan to someone involved in litigation, but usually that is not a viable alternative.


 WHAT DAMAGES CAN I RECOVER IN A PERSONAL INJURY CASE?
There are two general categories of damages in a personal injury action. First, recovery is allowed for economic damages. These usually consist of property damages, wages lost in the past, the loss of ability or diminished ability to earn wages in the future, medical and related expenses incurred in the past, and medical and related expenses to be incurred in the future. These damages are often proved by itemizing medical bills and sometimes an economist is used to help calculate the future economic losses in substantial cases.

In addition to economic damages, an injured party may recover non-economic damages which consist of pain and suffering, mental anguish, disfigurement, disability, and loss of enjoyment of life. There is no exact standard for these damages and the jury has wide discretion in the amount to be awarded.

In the case of a spouse of an injured person, the non-injured spouse may recover damages for the loss of his or her spouse’s companionship, services, comforts and society.

In cases where a parent is totally and permanently disabled as a result of the wrongdoer’s actions, a minor child may recover for loss of parental companionship, guidance, and services until the age of majority.

In the case of an injured child, the parents may recover any economic damages that they have suffered but the recovery for non-economic damages belongs to the child. These cases must be approved by the court before they are settled and the portion of the money belonging to the child, which is the vast majority of the money recovered, must go into a guardianship account, trust fund, annuity, or other protected account, and cannot be used without an explicit court order.


 WHAT DAMAGES MAY I RECOVER IN A WRONGFUL DEATH ACTION?
The damages recoverable in a wrongful death action governed by Florida law are specified in Florida’s Wrongful Death Act. There are three general classes of damages.

First, the surviving widow or widower and any minor children (defined to be under the age of 25) may recover damages for mental pain and suffering and loss of companionship and instruction and guidance

The parents of a minor child (defined to be a child under the age of 25) may recover for their mental pain and suffering.

If there are no minor children and spouse surviving, then adult children may recover, (except in malpractice cases, in which they are barred by statute from this recovery) the same types of damages as a minor child.

Any close blood relative who was wholly or partly dependent upon the decedent for support or services can recover the economic value of those services or support.

The estate can recover for the future loss of net accumulations to the estate caused by the decedent’s premature death.

The estate or any particular survivor who paid funeral and medical expenses can recover those.

The wrongful death action must be brought in the name of the personal representative who brings one action for the benefit of the estate and all survivors. In general, the personal representative has the right to retain the attorneys and controls the litigation. However, any settlement in which there is a dispute as to how the proceeds should be allocated or in which a minor is involved, required court approval.