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HPS Legal Alert: What Does It Take in Florida to Prove the Violation of the Professional Standard of Care in a Medical Malpractice Case?

By Kenneth J. Miller

September 9, 2022

In every negligence case the elements are the same: duty, breach, causation, and damages. Medical malpractice cases are a specific type of negligence case. The difference is that when bringing a medical malpractice claim, instead of discussing the duty and breach, the legal discussions revolve around whether there was a violation of the Professional Standard of Care.

What to Prove?

The Florida legislature enacted Chapter 766 of the Florida Statutes in response to the State of Florida’s medical malpractice insurance crisis in the 1980s. One of the provisions contained in Chapter 766 codified what must be proven to establish a medical malpractice claim. Whether the claim is for injury or death, when it is alleged to be the result of medical malpractice, Florida Statute 766.102 sets out what the Claimant must prove in order to prevail, which is further defined as “that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as an acceptable and appropriate by reasonably prudent similar healthcare providers.”

How to Prove?

That certainly is a mouth full and seems easy, right? What it means in real time is that this creates a situation where, unlike a general negligence claim, expert witnesses (or multiple expert witnesses) are required in order for the Claimant to establish a violation of the Professional Standard of Care.

First, during the pre-suit period, there needs to be an affidavit from qualified expert(s) whose opinions were that there was a breach in the prevailing Professional Standard of Care. Then, once the case goes into suit, and discovery is taken, the qualified expert(s) will have additional facts to review. So there is the intense task of getting the experts prepared enough to provide a winning deposition and to testify at trial. All of this is necessary to prove a violation of the Professional Standard of Care.

That is one of the many reasons medical malpractice cases are different from general negligence cases, and it is also one of the main reasons why the overall cost (monetarily and manpower-wise) for an attorney or law firm to take on such a case may be much higher than handling other types of legal matters. 

But Wait! There’s More! 

Establishing a violation of the Professional Standard of Care is just one piece that needs to be addressed when successfully litigating a medical malpractice claim, but uncovering this violation is something that needs to happen at the outset. If you or someone you know has been involved in a case where there may have been a violation the Professional Standard of Care and would like to discuss next steps, please contact Ken Miller or a member of the Haliczer, Pettis & Schwamm legal team.

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