§2:40.1 Elements of Cause of Action - Florida Supreme Court
Four elements are necessary to sustain a negligence claim:
1. a duty, or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
2. a failure on the defendant's part to conform to the standard required: a breach of the duty;
3. a reasonably close causal connection between the conduct and the resulting injury, which is commonly known as "legal cause," or "proximate cause," and which includes the notion of cause in fact; and
4. actual loss or damage.
SOURCE
Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010).
SEE ALSO
1. Turlington v. Tampa Electric Co., 56 So. 696, 698 (Fla. 1911).
2. Woodbury v. Tampa Waterworks Co., 49 So. 556, 566 (Fla. 1909).
3. Florida Dep't of Corrections v. Abril, 969 So.2d 201, 204-05 (Fla. 2007).
Two Years. Fla. Stat. §95.11(4)(b); but seeFla. Stat. §766.104(2) (an automatic 90-day extension will be granted upon petition to the court to allow for reasonable investigation based on good faith).
7. 70 C.J.S. Physicians and Surgeons §§81-149 (2005).
§2:30.4 Defenses
1. Comparative Negligence: To establish the defense of comparative negligence, the medical defendant must prove each of the following elements of negligence: (1) the plaintiff owed himself a duty of care; (2) the patient breached that duty; and (3) the breach was the proximate cause of the damages the patient sustained. Riegel v. Beilan, 788 So.2d 990 (Fla. 2d DCA 2000).
2. Duty Limited: Doctors do not have a duty to treat each of their patients for every conceivable medical condition that they might have. Generally, a doctor is not liable for the suicide of a patient. An exception to this general rule exists when the patient is confined to a hospital. Where a patient has surrendered himself to the custody, care and treatment of a psychiatric hospital and its staff, liability may be predicated upon the hospital's failure to take protective measures to prevent the patient from injuring himself. Garcia v. Lifemark Hospitals of Florida, Inc., 754 So.2d 48, 49 (Fla. 3d DCA 1999), rev. denied, 779 So.2d 270 (Fla. 2000).
3. Pre-Suit Notice: The notice requirement under the Act is inextricably intertwined into the fabric of an overall statutory scheme designed to weed out meritless medical malpractice claims and promote the prompt resolution of valid claims. The Legislature expressed its intent to provide a plan for prompt resolution of medical negligence claims, which plan consists of two separate components, presuit investigation and arbitration. Pavolini v. Bird, 769 So.2d 410, 412 (Fla. 5th DCA 2000), rev. denied, 790 So.2d 1102 (Fla. 2001). After the claimant completes the presuit investigation, she or he must then notify each "prospective defendant" of the intent to initiate litigation prior to filing a claim for medical malpractice. See§766.106, Fla. Stat. (2005). Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974, 977 (Fla. 2002). Failure to follow pre-suit procedures requires a dismissal of the cause of action. Palms West Hosp. Ltd. P'ship v. Burns, 83 So. 3d 785, 788 (Fla. Dist. Ct. App. 4th Dist. 2011) (the medical negligence umbrella is wide enough to include allegations of business decisions, such as staffing choices, leading to medical injury, and, therefore, must comply with all pre-suit notice requirements before filing a malpractice claim).
§2:30.5 Related Matters
1. More Likely Than Not Standard of Causation: In negligence actions, Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury. Bennett v. St. Vincent's Med. Ctr., Inc., 71 So.3d 828 (Fla. 2011) (affirming administrative law judge's factual findings as to infant's injuries "more likely than not" being caused well after birth, disqualifying infant from NICA (Neurological Injury Compensation Act) coverage); Hollywood Med. Ctr., Inc. v. Alfred, 82 So. 3d 122, 125 (Fla. Dist. Ct. App. 4th Dist. 2012) (evidence showed that had physician undertaken appropriate treatment, more likely than not wife would have survived; but evidence failed to establish causation because it did not show the breach of standard of care by nursing staff, hence requiring directed verdict for hospital). In Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984), the Supreme Court quoted Prosser on this standard of proof: [The plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Id. (quoting William Prosser, Law of Torts §41 (4th ed. 1971) (footnotes omitted)). The "more likely than not" standard is satisfied in a wrongful death case if a plaintiff presents evidence that establishes that the decedent had a fifty-one percent or better chance that death would not have occurred but for the actions or lack thereof of the medical care provider. See Rivet v. Perez, 655 So.2d 1169, 1171 (Fla. 3d DCA 1995); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 327 (Fla. 1st DCA 2002), case dismissed, 863 So.2d 310 (Fla. 2003).
2. Res Ipsa Loquitur: To state a claim under the res ipsa loquitur doctrine an injured plaintiff must establish two things: (1) that the cause of his or her injury was under the exclusive control of the defendant; and (2) that the injury would not, in the ordinary course of events, have occurred without negligence on the part of the defendant, who was in control. See Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341 (Fla. 1978). Moreover, this court has previously recognized: Given the restrictive nature of the doctrine [of res ipsa loquitur], a court should never lightly provide this inference of negligence. Rather it is incumbent on the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine's requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference. Kenyon v. Miller, 756 So.2d 133, 136 (Fla. 3d DCA 2000).
3. Valcin Doctrine: The Valcin doctrine, as it is now called, is applied when, through the defendant's negligence, essential records are missing or inadequate, and such absence or inadequacy hinders the plaintiff's ability to establish a prima facie case. In those instances, a rebuttable presumption of negligence is placed on the defendant. Once the defendant introduces evidence tending to disprove the presumed fact, the jury then decides whether the evidence introduced is sufficient to meet the burden of proving that the presumed fact did not exist. The doctrine is applicable to those cases in which either primary or secondary evidence is lost, destroyed, or not maintained. Anesthesiology Critical Care & Pain Management Consultants, P.A. v. Kretzer, 802 So.2d 346, 349 (Fla. 4th DCA 2001).