Immunities

Tue, 29 May 2007 21:19:00 GMT

The State of Florida and its counties, municipalities, and other political subdivisions does not enjoy sovereign immunity. The statutory waiver of immunity is limited to $100,000 per claimant and $200,000 per occurrence. Neither the state nor any of its political subdivisions is liable for punitive damages. 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.

Independent contractors share in this sovereign immunity, and thus to enjoy the benefits of the low limits on damages. Legislature has specifically designed a statute 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 codefendants' liabilities will be capped. The contractor must meet risk management standards, pay his own costs and legal fees for malpractice litigation, and give notice of the arrangement to every patient.

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. The State Tort Claims Act also provides that attorneys' fees in such actions may not exceed 25 percent of the judgment or settlement amount.

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.

Arbitration

Tue, 29 May 2007 21:19:00 GMT

Florida does not require that medical malpractice actions be referred to an arbitrator, although judges are authorized to refer cases to nonbinding arbitration. Florida does have the system of voluntary binding arbitration for the determination of damages, which gives defendants an option to limit noneconomic damages in return for admitting liability. Arbitration, once chosen, is the exclusive means by which to seek recovery.

If a defendant refuses to accept the claimant's offer to arbitrate, the claimant, if successful at trial, is entitled to prejudgment interest and up to 25 percent of the award in attorneys' fees.

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 noneconomic damages.

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 noneconomic damages, plus attorneys' fees of fifteen percent.

The damage cap in the arbitration statute has been held to be constitutional. A recent District Court of Appeal decision held that an arbitrator may award no more than $250,000 for a single wrongful death claim, regardless of the number of claimants. It certified to the Supreme Court the question whether the cap on noneconomic damages of $250,000 per incident in a voluntary arbitration applies to each beneficiary under the Wrongful Death Act or applies in the aggregate to all beneficiaries.

Attorneys' Fees

Tue, 29 May 2007 21:19:00 GMT

Florida has declared that attorneys' fees in excess of the following amounts are presumed unreasonable:

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.
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.
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.

In cases that are appealed an extra 5 percent over what is otherwise allowed.

Collateral Source Rule

Tue, 29 May 2007 21:19:00 GMT

Florida has held that the court must reduce a claimant's damages by the amounts paid to the claimant from collateral sources. 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.

Contribution

Tue, 29 May 2007 21:19:00 GMT

Florida has held that joint tortfeasors are afforded a right of contribution with the exception of a settling tortfeasor, who 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. Relative degrees of fault provide the basis for allocating liability in contribution.

Contributory Or Comparative Negligence

Tue, 29 May 2007 21:19:00 GMT

Florida adheres to the pure form of comparative negligence.

Damage Caps

Tue, 29 May 2007 21:19:00 GMT

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. Florida's voluntary arbitration process also provides a cap on noneconomic damages under certain circumstances. The damage cap in the arbitration statute has been held to be constitutional. A recent District Court of Appeal decision held that an arbitrator may award no more than $250,000 for a single wrongful death claim, regardless of the number of claimants. It certified to the Supreme Court the question whether the cap on noneconomic damages of $250,000 per incident in a voluntary arbitration applies to each beneficiary under the Wrongful Death Act or applies in the aggregate to all beneficiaries.

Expert Testimony

Tue, 29 May 2007 21:19:00 GMT

A claimant must include a verified written medical expert opinion corroborating that there are reasonable grounds to believe that each named defendant was negligent. This must be done in his notice of intent to initiate medical malpractice litigation. Unless the alleged negligence is obvious to a layman, expert testimony is necessary to establish a claim for medical malpractice. A defendant who denies the existence of reasonable grounds for the claim must also provide a corroborating verified written medical expert opinion.

Joint And Several Liability

Tue, 29 May 2007 21:19:00 GMT

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. The jury shall apportion liability among all culpable persons or entities including nondefendants upon request from any party. However, any tortfeasor whose liability exceeds that of the claimant is jointly and severally liable for the claimant's economic damages with the exception of the state university system or to teaching hospitals, for which joint liability has been abolished.

Patient Compensation Funds And Physician Insurance

Tue, 29 May 2007 21:19:00 GMT

Florida has established two patient compensation funds:

The Florida BirthRelated Neurological Injury Compensation Plan, which is the exclusive means of obtaining compensation for an important class of severe, birthrelated injuries. This provides compensation for birthrelated neurological injuries without regard to the negligence of any health care provider. Since recovery under this plan precludes recovery by means of a medical malpractice jury trial, whether or not an injury meets the required 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. Actions under the plan must be commenced within five years from the infant's birth. Physicians are not required to participate in the plan. However, the fund will not cover a birthrelated injury if the delivering physician is not a participant.

The Florida Patient Compensation Fund is a system of statesponsored excess insurance for medical malpractice liability. Under this Fund, 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). Hospitals operated by units of government or meeting certain financial responsibility requirements ($2,500,000 of insurance coverage) are exempt. 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. A hospital's limits under the fund are $2,500,000 per claim with no annual aggregate. A participating health care provider still remains liable for damages in excess of the fund's coverage and for punitive damages. The entrylevel insurer is responsible for providing a defense.

Periodic Payments

Tue, 29 May 2007 21:19:00 GMT

The court must order that any future economic damages in excess of $250,000 be made as periodic payments upon request from any party. The court may require security and must deduct collateral benefits.

Pre-Judgment Interest

Tue, 29 May 2007 21:19:00 GMT

Florida does not allow the award of prejudgment interest.

Statutes Of Limitations

Tue, 29 May 2007 21:19:00 GMT

Medical malpractice and wrongful death actions 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. In no event may an action be commenced more than four years after the incident giving rise to the action, except that this fouryear period will not bar an action before the claimant's eighth birthday. 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. A claimant's incompetency tolls the statute, but the action must be brought within seven years of the incident.

Vicarious Liability

Tue, 29 May 2007 21:19:00 GMT

Florida has adopted what it calls the theory of corporate negligence to hold hospitals vicariously liable for the acts of nonemployee 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.

Florida courts have recognized that hospitals may be liable for the acts of nonemployee physicians on the theories of joint venture and apparent agency.