Medical Malpractice Law

Patient Compensation Funds And Physician Insurance

Florida has established two patient compensation funds:

The Florida Birth­Related Neurological Injury Compensation Plan, which is the exclusive means of obtaining compensation for an important class of severe, birth­related injuries. This provides compensation for birth­related neurological injuries without regard to the negligence of any health care provider. Since recovery under this plan precludes recovery by means of a medical malpractice jury trial, whether or not an injury meets the required definition is often litigated. The definition excludes by its terms premature babies and those whose injury results from care prior to labor and delivery. A child must be both mentally and physically impaired to qualify. Actions under the plan must be commenced within five years from the infant's birth. Physicians are not required to participate in the plan. However, the fund will not cover a birth­related injury if the delivering physician is not a participant.

The Florida Patient Compensation Fund is a system of state­sponsored excess insurance for medical malpractice liability. Under this Fund, hospitals are required to participate in the fund by paying a yearly fee and obtaining primary insurance (or otherwise demonstrating financial responsibility) of $250,000 per claim or $500,000 per occurrence (which is indexed for inflation after January 1, 1990). Hospitals operated by units of government or meeting certain financial responsibility requirements ($2,500,000 of insurance coverage) are exempt. These “entry level” amounts also apply to physicians who choose to participate in the fund. The fund then affords coverage to its participants, other than hospitals, of either $1,000,000 per claim with a $3,000,000 annual aggregate, or $2,000,000 per claim with a $4,000,000 aggregate. A hospital's limits under the fund are $2,500,000 per claim with no annual aggregate. A participating health care provider still remains liable for damages in excess of the fund's coverage and for punitive damages. The entry­level insurer is responsible for providing a defense.