In Florida, COVID-19 is continuing to rage, with numbers going up each and every day. Certainly, it has impacted the everyday lives of many Floridians, but it also could have an impact on areas of life people may not expect — like medical malpractice cases.
Several states, as well as the federal government, have created narrow legal immunities for medical providers during the COVID-19 pandemic. However, these protections are mostly temporary. That means they may impact your ability to file a medical malpractice case in Florida, but not forever.
Here’s what you need to know.
What Is Medical Malpractice under Florida Law?
There are a variety of ways medical malpractice can occur. Generally speaking, it refers to the negligence committed by a specialist, nurse, doctor, surgeon, pharmacist, nurse practitioner, or other healthcare provider that results in a serious injury to the person being treated.
There are several types of negligence that can fall under the umbrella of medical malpractice:
- Medical errors
- Missed or wrong diagnoses
- Surgical mistakes
- Other mistakes that can injure a patient or cause them to become more ill instead of healthier
What Needs to Be Proven to Win a Florida Medical Malpractice Case?
There is a standard of care in Florida that all medical malpractice suits are held to. This refers to the level of skill, treatment, and care considered reasonable, appropriate, and acceptable by another reasonable healthcare provider.
The medical malpractice standard of care differs from person to person, as age and medical conditions are often applicable in determining what the stand of care should have been for that patient. If you want to bring a suit against a specialist, their standards of care are often held to national standards.
In order to prove medical malpractice, the patient must prove that the doctor committed medical malpractice and breached the standard of care applicable to the situation. It is that breach that resulted in the injuries or damages to the patient.
Examples of Common Florida Medical Malpractice
There are many forms that medical malpractice can take in Florida. The most common basis of medical malpractice suits include:
- Neglect of the patient
- Poor sanitation that resulted in infection or other serious injuries
- Poor communication with the patient
- Misdiagnosis of the patient’s condition
- Negligently or poorly performing surgical procedures
- Performing a surgery that wasn’t needed on the wrong part of the body
- Performing a medical procedure or surgery on the patient for which they did not consent
- Discharging a patient from the hospital prematurely without enough time for observation
What Damages Can Floridians Sue For?
If you are injured due to medical malpractice in Florida, you can sue a physician or healthcare provider to recover damages that include:
- Lost wages
- Medical bills
- Mental anguish
- Loss of spousal support
- Emotional distress
- Inconvenience associated with the injuries endured
How COVID-19 Has Impacted Florida Medical Malpractice
In many states, governors have passed temporary executive orders to shield healthcare professionals and hospitals from frivolous lawsuits due to COVID-19 treatment. Florida’s governor has been petitioned to do the same by groups such as the Florida Hospital Association and Florida Chamber of Commerce but has yet to do so.
That doesn’t mean there isn’t some measure of immunity for healthcare workers amidst the COVID-19 pandemic. Limited liability protection has been offered by the federal government through the PREP Act (Public Readiness and Emergency Preparedness Act). It authorizes the U.S. Department of Health and Human Services to issue a PREP Act declaration when there is a public health emergency.
The PREP Act provides immunity from liability claims to organizations or individuals involved in dispensing, manufacturing, or distributing medical countermeasures, except in cases of willful misconduct.
The Limitations of Immunity from Liability
There are a few situations not covered by the blanket immunity that the COVID-19 pandemic has brought with it for medical malpractice patients. These include:
- Willful misconduct that leads to serious physical injury or death
- Claims based on actions that fall outside the scope of the emergency declaration
- Claims filed under foreign law in courts outside of the U.S.
- Claims of loss that don’t allege a causal relationship to the use of or administration of a covered countermeasure
- Lawsuits other than tort claims such as violation of civil rights laws, labor laws, or the Americans with Disabilities Act
Just as with this virus, changes that may make it more difficult to pursue a medical malpractice suit are temporary. You still need to abide by the statute of limitations for filing a medical malpractice lawsuit in Florida, which is two years.
Don’t let COVID-19 deter you from pursuing a medical malpractice claim if you believe you’ve suffered at the hands of a medical provider.
About the Author:
Andrew Winston is a partner at the personal injury law firm of Winston Law. For over 20 years, he has successfully represented countless people in all kinds of personal injury cases, with a particular focus on child injury, legal malpractice, and premises liability. He has been recognized for excellence in the representation of injured clients by admission to the Million Dollar Advocates Forum, and named one of America’s Top 100 High-Stakes Litigators. Mr. Winston is AV Preeminent Rated by the Martindale-Hubbell Law Directory, enjoys a 10.0 rating by AVVO as a Top Personal Injury Attorney, has been selected as a Florida “SuperLawyer” from 2011-2020 – an honor reserved for the top 5% of lawyers in the state – was voted to Florida Trend’s ”Legal Elite,” recognized by Expertise as one of the 20 Best Fort Lauderdale personal injury attorneys, named one of the Top 100 Lawyers in the Miami area for 2015-2017, and one of the Top 100 Lawyers in Florida for 2015-2017 and 2019.
