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When Can You File a Medical Malpractice Claim?

Oldham & Smith June 22, 2023

Medical malpractice is when the misconduct of a healthcare professional causes a patient significant harm and injuries. Medical malpractice is a serious issue —one study found that medical errors were the third leading cause of death in the US. If you or your loved one have suffered because of a doctor or other medical professional’s negligence, you deserve compensation for your injuries. Learn more about filing medical malpractice claims in Florida here.  

Medical Malpractice in Florida  

Over 1,600 medical malpractice claims were filed in Florida in 2022, slightly less than in 2021. On average, 17% of claims resulted in an award to the plaintiff. Damage settlements for medical malpractice tend to be higher than other types of lawsuits, with a typical award totaling over $200,000 per case. Surgical errors account for the highest number of medical malpractice claims, representing over 40%. OBGYN-related medical malpractice claims are second place, with 15% of claims. Females over 40 make up 60% of medical malpractice filers.  

Types of Medical Malpractice  

Here are the top reasons people choose to file medical malpractice claims: 

Surgical errors  

Surgical errors are the most common type of medical malpractice. Surgical mistakes include errors like administering the incorrect anesthesia dosage, wrongful amputation, or failure to remove surgical equipment after surgery. 


These claims assert that a doctor failed or delayed diagnosing a condition, leading to injuries or death. One of the most common misdiagnoses is stroke, especially for currently hospitalized patients. A doctor’s inability or failure to properly read lab results also falls into this category.  

Improper Medical Treatment  

These types of medical malpractice claims are the second most expensive. Improper medical treatment occurs when a doctor or healthcare professional prescribes the wrong medication or gives the wrong dosage, which can result in serious health effects. It also includes incorrect medication labeling or medical equipment failure. 

Birth Injuries  

Injuries, chronic conditions, and defects related to childbirth involving a mother or child are one of the leading reasons for filing a medical malpractice claim.  

Proving Medical Malpractice  

You must prove that the healthcare professional breached their duty of care in providing medical treatment. Medical providers are legally obligated to use medical best practices and standard care when treating patients. They also automatically assume a duty of care when someone becomes their patient. Proving medical malpractice involves providing evidence that they breached this duty by acting outside standard care. Standard of care is defined in Florida Statute 766.102 as the level of treatment and skill recognized as acceptable by similar healthcare providers.  

You’ll also need to prove causation, which means that the medical staff’s breach of care directly resulted in a preventable injury. This injury must have also caused damages, such as serious injuries, medical expenses, debilitating medical conditions, paralysis, or death.  

How to File a Medical Malpractice Claim  

Working with a medical malpractice attorney to help you prepare your medical malpractice claim is essential. The first step is to serve the healthcare provider with a notice of intent to sue. This notice must include a signed affidavit from a third-party healthcare provider with a similar medical background confirming the negligence. The healthcare provider will then have 90 days to respond with a settlement offer, a claim denial, or a request to enter arbitration. You have two years from discovering the issue and four years from the date of the medical malpractice occurrence to file your claim. 

Thinking of Filing a Medical Malpractice Claim? Call Oldham & Smith  

 Illness, injuries, and accidental death caused by medical staff negligence have devastating effects. At Oldham & Smith, we bring justice to hurting families in Lake County by fighting for the compensation you deserve after suffering an illness or injury caused by negligent medical staff. Call our office at (352) 744-7717 for a free consultation to speak with our team to discuss your case.