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Florida Statute of Limitations for Medical Malpractice

April 28th, 2022 by

Medical malpractice statutes and limitations are not straightforward. This ambiguity can serve to protect both the patient and the medical professionals who are doing their best to help their patients with the knowledge and resources that are accessible.

The clock starts ticking at the time medical care is provided, but another clock starts ticking on the day the patient realizes there are problems that could indicate malpractice.

However, in the event that a provider actively covers up the malpractice and deceives the patient, all clocks stop.

Here’s what you need to know.

What Is the Florida Medical Malpractice Statute of Limitations?

When a person receives medical care, the general rule is that they have two years from that date to file a malpractice claim in Florida.

This two-year limitation is extended to four years in certain circumstances. For example, if the person doesn’t realize they have suffered harm as a result of the medical care for up to four years after the medical care, this timeline is extended. This delayed realization would have to be proven in court in addition to the need to prove that malpractice occurred.

If the person doesn’t realize they were harmed due to a medical provider’s care until four years and one day or beyond, any attempt to file a malpractice case will be thrown out unless they can show that the doctor or medical facility actively covered up the malpractice or deceived the patient. This will also need to be proven in addition to the original malpractice claim and the facts supporting the delayed realization of harm.

It is important to note that a patient must file a Notice of Intent before filing a malpractice case. This will detail the nature of that case and give the person or business 90 days to respond. This filing stops the clock on the statute of limitations.

In many cases, a settlement offer may be provided within that 90-day period, but if the professional or business indicates that they will not settle, the patient must file a malpractice suit within the remaining time left in the 90 days after notice or the amount remaining in the statute of limitations, whichever provides them with more time.

What Are Florida Medical Malpractice Caps?

There are also some caps in place when it comes to how much a patient may ask for and be granted in a malpractice case. When it comes to non-economic damages, like “pain and suffering,” the cap is set at $500,000. If the damages are economic in nature (such as lost income due to malpractice), the cap is set at $1,000,000.

Florida Statute of Limitations for Medical Malpractice: Get Help

Medical malpractice cases can be complicated. If a settlement is desired, legal counsel can help to ensure a fair and protected deal. Contact Florida Healthcare Law Firm now to discuss the terms of any medical malpractice claims and get help moving forward.

What Is an Apology Law in Medical Malpractice?

March 21st, 2022 by

Saying “I’m sorry” to a patient shouldn’t hurt your career.

This, essentially, is the primary directive of apology laws or statutes across the country: to stop a patient from using an apology from a medical provider against them in a court of law as grounds for a malpractice suit.

The idea is to grow a more honest and open conversation between patient and doctor, and to ensure that the patient has all the information possible about their medical care.

In some states, Florida included, the law is taken a step farther, requiring medical care professionals to not only inform their patients of all incidents that resulted in their harm but also to do so in person.

What Are the Apology Laws by State?

Not all states have apology laws, but Florida does.

Florida Statute 90.4026 states that an expression of condolences or sympathy by a medical professional should not be used as grounds for a malpractice suit.

This law means that it’s okay for a doctor to empathize with a patient when they experience a negative outcome after medical care or intervention. They can say, “I’m sorry this happened to you,” without that statement constituting an admission of guilt in a court of law.

However, Florida makes it clear that if a “benevolent gesture” is accompanied by an admission of wrongdoing or fault then that statement in its entirety can be used in a malpractice suit.

Additionally, while the Florida Statute does not require a doctor to apologize or express sympathy or condolences, it does require them to report to the patient any level of harm that resulted from medical treatment.

For example, if internal sutures during a surgery were not done correctly and caused internal bleeding, the doctor would be required to let the patient know rather than just ignore the situation.

When Would the Apology Law Come Into Play?

If a doctor discovers after the fact that there was more information available about the patient’s condition and that information would have altered their choices, the doctor might apologize to the patient for the choices they made medically that resulted in harm to the patient. If that apology comes with an admission of wrongdoing, then that apology would be admissible in court as evidence supporting the patient’s case.

However, if that apology did not include an admission of fault, the patient will be required to depend on other evidence of malpractice if they believe that malpractice or negligence was indeed the cause of harm.

How Does the Apology Law Impact You?

If you are dealing with the apology law in a malpractice suit, reach out to the Florida Healthcare Law Firm for assistance. We can help you address the situation and move toward a speedy resolution. Call now.

How to Report an EMTALA Violation

October 11th, 2021 by

All people in the United States have the right to emergency medical care, and the EMTALA law seeks to ensure that this right is upheld in all situations.

When it is not, those who are witness to the refusal of emergency medical services can report the violation of the EMTALA law.

What Is EMTALA Law?

The Emergency Medical Treatment and Active Labor Act (EMTALA) protects people who do not have insurance from being denied medical care due to the inability to pay for treatment.

Essentially, it is required that all hospitals and the doctors who work there provide emergency medical treatment to whomever needs it, regardless of their insurance status.

What Is an EMTALA Violation?

When a hospital or doctor employed by a hospital refuses a patient emergency medical treatment they need due to lack of insurance, it is a violation of the EMTALA law.

The fine for this violation can be as much as $50,000 for the hospital and the physician. These fines are not covered by malpractice insurance.

A further penalty could include denial of participation in the Medicare program to the hospital or doctor.

How Do I Report an EMTALA Violation?

Reach out to the local Centers for Medicare & Medicaid Services (CMS) and let them know that you would like to file an EMTALA complaint. If you prefer, you can do this anonymously.

At that point, they will take a full report from you on what happened, so they can investigate the incident and make a determination. They will need the location, date and time, names of the people involved, the extent of the injuries, and details on what exactly happened.

Do I Need Help to Report an EMTALA Violation?

No. If all you’d like to do is file a report on a hospital for an alleged EMTALA violation, you can go to CMS and they will assist you.

If you believe you require legal support due to an EMTALA violation, contact us at Florida Healthcare Law Firm today.

Telehealth/Telemedicine extends until May 8, 2020 in Florida

April 16th, 2020 by

Telehealth Telemedicine extensionBy: Susan St. John

Breaking News: The State Surgeon General issued Emergency Order 20-004 at approximately 6:01 p.m. on April 15, 2020. Emergency Order 20-004 extends all the provisions of Emergency Order 20-002 until May 8, 2020, unless further extended. Thus, certain practitioners licensed in other states may provide telehealth services to persons in Florida without having to register with the Department of Health. Also, Emergency Order 20-003, issued March 21, 2020, named additional clinical practitioners licensed in other states that may provide telehealth services to persons in Florida. The following professionals that hold an active, valid, and unencumbered license in another state, that are not under investigation or current discipline, and have not had their license revoked in any jurisdiction, may provide telehealth services in Florida: read more

The Risk Of Not Paying Attention to HIPAA Violations

October 30th, 2019 by

HIPAA, HIPAA violations, HIPAA compliance

By Jacqueline Bain

On October 23, 2019, the U.S. Department of Health and Human Services has imposed a civil money penalty of over $2 million against Jackson Health System in Florida for repeated HIPAA violations.

The HIPAA violations mentioned in the HHS Press Release include:
1-Loss of paper patient records in December 2012;
2-Loss of additional paper patient records in January 2013;
3-A media report containing patient information (a photo shared on social media);
4-Employees accessing the information of one patient without a job related purpose;
5- An employee’s improper access and sale of patient records in 2011.

“OCR’s investigation revealed a HIPAA compliance program that had been in disarray for a number of years,” said OCR Director Roger Severino. The state of the compliance program allowed for the failure of several HIPAA requirements, including provision of timely and accurate HIPAA breach notifications, performance of regular risk assessments, investigation of identified risks, audits of system activity records, and imposing appropriate restrictions on workforce members’ access to patient information. The government’s final determination is available here.

When a HIPAA breach is discovered and reported, the government will often take the time to review a covered entity’s history of compliance or non-compliance. This may include an investigation into prior issues, effectiveness of policies and procedures, and employee issues. Overlooking one suspected breach may result in the imposition of sanctions on any later breach. This is why it’s so important for a healthcare business to understand its HIPAA obligations and take them seriously.

When was the last time your business conducted a security risk assessment to understand its potential risk areas for security breaches? If you’ve never had one, or haven’t had one recently, the time is now to conduct one. “When was your last security risk assessment?” is often the first thing that the government will ask in response to a breach.

Federal fines for noncompliance with HIPAA are based on the level of negligence perceived by the Federal government at the time of the breach. Fines and penalties range from $100 to $50,000 per violation (or per record), with a maximum penalty of $1.5 million. Simply put, your healthcare business can’t afford to bury its head and hope that it won’t be hit.

Federal Agencies Scrutinizing Home Healthcare Fraud & Kickbacks

October 11th, 2019 by
home healthcare, HHS, heathcare

checking mans blood pressure

By Karina P. Gonzalez

Federal agencies are continuing to target home healthcare industry fraud in “hot zone areas.”

Recently, the U.S. Department of Health and Human Services Office of Inspector General (HHS) released its report. It identified Florida, Texas and select areas in Southern California and the Midwest as areas where home healthcare fraud is more likely to occur. It is obvious that the watch dog agencies will continue to monitor home healthcare spending in these hot zones.

HHS found that a home health agency incorrectly billed Medicare and did not comply with Medicare Billing requirements for beneficiaries that were not homebound and for others that did not require skilled services at all.

In August and September 2018, physicians and the owner of a home health agency were each sentenced on multiple counts of conspiracy and healthcare fraud and ordered to pay $6.5 million in restitution. One physician was sentenced to 132 months in prison following trial. A physician who pled guilty was sentenced to 27 months in prison following a guilty plea. The home health agency owner was sentenced to 42 months in prison.   The defendants paid and received kickbacks in exchange for patients and billed Medicare more than $8.9 million for services that were medically unnecessary, never provided, and/or not otherwise reimbursable. Additionally, certain defendants provided prescriptions for opioid medications to induce patient participation in the scheme.

In September 2018, the co-owner and administrator of a home health agency was sentenced to 24 months in prison, ordered to pay over $2.2 million in restitution, and ordered to forfeit over $1.1 million. The co-owners participated in a home healthcare fraud conspiracy that resulted in Medicare paying at least $2.2 million on false and fraudulent claims. The owners and their co-conspirators paid kickbacks to doctors and patient recruiters in exchange for patient referrals, billed Medicare for services that were medically unnecessary, and caused patient files to be falsified to justify the fraudulent billing.

Back in February 2018, the owner of more than twenty home health agencies was sentenced to 240 months in prison and ordered to pay $66.4 million in restitution, jointly and severally with his co-defendants, after pleading guilty to one count of conspiracy to commit health care fraud and wire fraud. A patient recruiter for the home health agencies, who also owned a medical clinic and two home health agencies of her own, was sentenced to 180 months in prison. Another patient recruiter, who also was the owner of two home health agencies, was sentenced to 115 months in prison. These conspirators paid illegal bribes and kickbacks to patient recruiters in return for the referral of Medicare beneficiaries many of whom did not need or qualify for home health services.  Medicare paid approximately $66 million on those claims.

Illegal kickbacks in exchange for referrals of Medicare beneficiaries, lack of medical necessity for home health services, failing to meet the guidelines, fraudulent billing, billing for services beneficiaries did not receive and fraudulent documentation continues to plague the home healthcare industry.

 

Protecting Your License Against Adverse Action

October 12th, 2017 by

election of rightsBy: Susan St. John

If you have ever been the recipient of a Florida state agency’s (i.e. Department of Health, AHCA, etc.) notice regarding an adverse action, such as a Notice of Intent to Deny, licensure application, renewal or change of ownership, you probably received an Election of Rights form along with the agency’s notice. The Election of Rights form must be completed and returned to the agency within 21 days of receiving the agency’s notice. In completing the Election of Rights form, you are given three options to choose from in deciding how you want to respond to the agency’s notice.

Under Option One you admit to the allegations of facts and law contained in the agency’s notice of intended action and waive the right to object and have a hearing. This is akin to an admission of guilt, that the agency is right in its decision, and you agree to a final order that supports the agency’s actions, including imposition of fines and punishment against you. Option One is generally not in your best interest. read more

Medical Marijuana Law: Medical Use in Florida Part I

July 12th, 2017 by

medical marijuana law FloridaBy: Susan St. John

As you have probably heard, Governor Scott signed Senate Bills 6A and 8A on June 23, 2017. What this means for practitioners is an increased opportunity to help patients that might derive benefit from treatment with medical marijuana. However, with increased opportunity comes increased scrutiny. Although these laws open up treatment options, practitioners need to ensure they strictly abide by the statutes and rules to be implemented by the Department of Health (“Department”). The Department has already published notice of the first conference call on Senate Bill 8A and emergency rule making authority, with the first conference call scheduled for Friday, July 14, 2017. Practitioners should also keep in mind that marijuana is still a schedule 1 controlled substance under federal law, thus, insurance companies are not covering treatment with medical marijuana. read more

Impaired Practitioner Program: Greater Treatment Access for Impaired Physicians

July 5th, 2017 by

impaired practitioner programBy: Jeff Cohen

A new law passed by the Florida Legislature shaves off some of the sharp edges of Florida law that applies to physicians who are impaired by substance abuse or mental illness.  The hub of treatment referenced in the law is the Impaired Practitioner Program (IPP).  Over the years, the IPP (a quasi-governmental entity) has come under fire for being too aggressive in how it deals with impaired physicians, by acting more like law enforcement than a healthcare provider.  Allegations in the past include physicians feeling “hauled off” to treatment before the demonstrated need was clear and being directed to providers that were expensive or inconvenient with reasonable alternatives exist.

The new law rounds out the IPP operations in creating additional accountability through the appointment by the Department of Health (DOH) of one or more consultants.  It also:

  1. allows certain providers to report an impaired practitioner to a consultant instead of the DOH.  Some in the program felt they were being leveraged into cooperating when they felt it was counter-indicated.  This measure might help balance the issues by interposing an independent consultant that is not under the IPP;
  2. prevents the consultant from reporting to DOH a practitioner who is self referring for treatment, but keeps intact features of accountability to help ensure the practitioner completes treatment;
  3. requires the consultant to copy the patient and any legal representative on any information release; and
  4. protects the consultant by extending sovereign immunity to him/her.

Healthcare professionals interacting with the IPP need to know their rights and options.  The new law helps facilitate that.

T’was the night before the First Tuesday after the First Monday in March, and all through the House (and the Senate…)

November 6th, 2015 by

FLBy: Dave Davidson

It’s that time of year.  People are scrambling around, deciding what they want to give and what they want to get.  Brand new packages are being wrapped up and filed away.  Excitement and tension fill the air. Everyone can’t wait for the big day; but in this season that big day doesn’t happen until the first Tuesday after the first Monday in March.  But it’s never too early to start getting ready, right?  In fact, the Florida Legislature is currently in session, drafting and filing bills that the sponsors hope will be considered in March and will become law in 2016.  And as usual, health care is on a lot of legislative wish lists.  Although all of these bills are subject to significant revision, and some may never make it out of a subcommittee, here’s a sneak peek of some of the proposed health care legislation (without editorial – for now).

Scope of Practice Expansion

Three categories of health care professionals may see significant expansion of the scope of their practice.

Both Advanced Registered Nurse Practitioners and Physician Assistants would gain the right to prescribe controlled substances pursuant to Senate Bill 676.  Most of the details about specific medications and dosages is left to an administrative committee, but the bill seems to anticipate broad authority.  The bill also adds references to ARNPs and PAs throughout the Florida Statutes, indicating a willingness to accept these professionals into a significant role in the delivery of care.  Additionally, SB 572 would add PAs and ARNPs to the list of providers who can certify that an individual meets Baker Act criteria to justify a patient’s involuntarily confinement for mental health reasons. read more