One of the most frequently-asked questions of an Orlando medical malpractice lawyer is: How long does a medical negligence claim take? It’s an important one, so we understand why it is raised so often. However, the best answer we can give is: It depends.
Some medical negligence claims can take a few months to resolve. Others can take several years. In cases wherein plaintiff must lobby a state lawmaker to file a legislative claims bill in order to collect on a trial court’s medical malpractice verdict against a public hospital or practitioner, it’s not unheard of for it to take over a decade. The same is true of general negligence claims, but one of the main reasons medical negligence claims can take so much longer is not only are they more complex, plaintiffs must meet the pre-lawsuit screening standards set forth in Chapter 766 of Florida Statutes, which deals with medical malpractice and related matters. These include the requirement to have an expert witness who meets the qualifications as set forth in F.S. 766.102, required notice before filing action, court-ordered arbitration, mandatory mediation and settlement conferences and immunity for a number of entities.
This is why many Orlando medical malpractice lawyers and injury attorneys will try if possible NOT to have the case classified as such. Although some cases can be categorized no other way, not all injuries that occur in a hospital are the result of medical negligence.
Elements of a Negligence Claim vs. Medical Negligence Claim
To understand how long a medical negligence claim takes, Orlando medical malpractice lawyers first need to break down the elements of a negligence claim. In a claim of general negligence, we must prove:
- Defendant owed plaintiff a duty of care. “Duty” arises when the law recognizes a relationship between defendant and plaintiff that required defendant to act a certain way. For example, drivers owe a duty to other drivers to follow the law and use reasonable care.
- Breach of duty. In most cases, we can prove breach of duty by showing defendant failed to use reasonable care, which is care that would be afforded by a reasonable and prudent person in the same or similar circumstances.
- Causation. This typically refers to asking if but-for the defendant’s actions, plaintiff’s injury would have occurred and also whether defendant could have foreseen harms caused by his or her actions.
- Damages. These are legally-recognized harms typically in the form of a physical injury, though may extend to wage losses, property damage, emotional losses and more.
Medical negligence claims are similar, but the primary difference is how we examine the “breach of duty.” Because in medical negligence, it’s not enough to prove the doctor failed to act “as a reasonable and prudent person would.” Instead, we must show the professional fell bellow (or breached) the standard of care that would be expected based on the prevailing professional standard of care. Perfection in medicine is not a standard that exists. Instead, the courts will consider all surrounding circumstances as well as the level of care, skill and treatment in light of those that could be considered appropriate by reasonably prudent similar health care providers.
This is proven through expert witness testimony. Recently, the Florida Supreme Court in Morris v. Muniz was asked to ascertain whether plaintiff’s expert witness – who was a long-time OBGYN but switched careers to become a lawyer and was in law school at the time she supplied her affidavit as an expert witness was “qualified.” Trial court did not think so and tossed the case. A divided Florida Supreme Court reversed. Qualification of expert witnesses can be hotly contested issues in Florida medical malpractice lawsuits.
How Long Does Medical Negligence Claim Take?
There is no surefire answer to this question. We can say that most need to be filed within two years, per the state’s statute of limitations on medical negligence cases, though it can be tolled (extended) in cases where plaintiff was a minor at the time of malpractice and/ or the negligence was not discovered and could not have reasonably been discovered within that statute of limitations window.
But the case isn’t over at the time of filing. Throughout the process, defendant may on occasion offer to settle the claim for a sum. Whether you choose to accept it will be a matter you discuss closely with your Orlando medical malpractice lawyer, who will want to ensure not just an expedient resolution to your claim, but a favorable one.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Morris v. Muniz , Sept. 8, 2018, Florida Supreme Court
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