Medical negligence cases are won before suit is ever filed.

A hospital or physician accused of negligence will be defended by lawyers who try these cases for a living and by experts who testify for a living. The patient's case must be built to the same standard.

Mr. Powell has tried medical negligence cases in Florida's state courts and in federal court, and has resolved many more by settlement—including a $53,000,000 structured settlement for a nine-year-old girl left with catastrophic brain damage when a nurse anesthetist failed to monitor her during an endoscopic procedure. He personally handles the medical records review, the expert work and the depositions in every malpractice matter the firm accepts.

What counts as medical malpractice in Florida

Not every bad outcome is negligence. Under section 766.102, Florida Statutes, a claimant must prove that the provider's care fell below the prevailing professional standard of care—the level of care, skill and treatment that, in light of all relevant circumstances, is recognized as acceptable and appropriate by reasonably prudent similar providers—and that the breach caused the injury. The standard is proved through the testimony of a qualified expert who practices in the same specialty as the defendant. Claims may also arise from treatment given without properly informed consent.

The presuit process, step by step

Chapter 766 requires a claimant to investigate and corroborate the claim before any lawsuit is filed. The steps are demanding, and mistakes at this stage can end an otherwise valid case.

1. Records. The firm obtains the complete medical record, including imaging, monitoring strips, nursing notes and billing. Providers are required to furnish records promptly on request.
2. Expert investigation. The records are reviewed with a qualified medical expert, who must provide a verified written opinion that reasonable grounds exist to believe the provider was negligent and that the negligence caused injury.
3. Notice of intent. Each prospective defendant is served with a notice of intent to initiate litigation, accompanied by the expert's opinion. This opens a 90-day presuit period during which the statute of limitations is tolled.
4. Informal discovery. During presuit, both sides may take unsworn statements, exchange written questions and documents, and require examinations. The defendants and their insurers must conduct their own good-faith investigation.
5. The response. At the end of the period each defendant must reject the claim, make a settlement offer, or offer to admit liability and arbitrate damages. An arbitration offer, if accepted, limits the damages that can be recovered; whether to accept it is a decision made with counsel.
6. Suit. If the claim is rejected, the complaint is filed and the case proceeds to litigation and, if necessary, trial.

Deadlines

A medical malpractice action must generally be brought within two years from the time the injury was discovered, or should have been discovered with reasonable diligence, with limited exceptions—including extended time where fraud, concealment or intentional misrepresentation prevented discovery, and special protection for young children. The presuit notice tolls the limitations period, and a 90-day extension may be obtained by petition before the period expires. Claims against public hospitals and other government providers carry the separate notice requirements and caps of section 768.28.

Because the two-year period runs from discovery, and discovery is often disputed, the firm treats the earliest possible date as the deadline and begins the presuit investigation immediately.

Damages and the limits Florida places on them

A patient injured by negligence may recover medical expenses, lost earnings and earning capacity, the cost of future care, and non-economic damages for pain, suffering, disability and loss of enjoyment of life. The Florida Supreme Court struck down the statutory caps on non-economic damages in medical negligence wrongful death cases in 2014 and in personal injury cases in 2017, so those caps no longer apply.

Where negligence causes a death, Florida law has restricted which survivors may recover non-economic damages in medical negligence cases; whether and how that restriction applies depends on the survivors, their ages and the date of death, and the restriction has been the subject of recent legislative activity. The firm evaluates each family's claim under the law in effect at the time.

Cases the firm handles

• Anesthesia errors and failures to monitor, including pediatric cases
• Surgical errors—wrong-site surgery, retained objects, injured organs, nerves and ducts
• Failure to diagnose cancer, infection, stroke, heart attack, spinal abscess and retinal detachment
• Radiology and pathology misreads
• Birth-related brain injury and obstetrical negligence
• Emergency room errors and premature discharge
• Radiation and medication errors
• Hospital, nursing home and assisted living neglect—pressure ulcers, falls, sepsis and ignored monitors
• Dental and oral surgery injuries

Nursing home and assisted living facility claims are governed by their own statutes and presuit procedures, which differ from chapter 766; the firm handles both.

What a malpractice client should expect

Candor first. Many potential claims cannot be proved, and the firm says so early rather than late. When a case is accepted, the client works directly with Mr. Powell, is told what the evidence shows at each stage, and is prepared for the possibility that the case will have to be tried. Costs of experts and litigation are advanced by the firm, and the fee is contingent on a recovery.