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Filing a Surgical Malpractice Lawsuit in Florida

Filing a Surgical Malpractice Lawsuit in Florida

Surgical malpractice is a specific type of medical malpractice that occurs when a surgeon, anesthesiologist, nurse, or any member of the surgical team fails to meet the accepted standard of care, resulting in harm to the patient. Like all medical malpractice claims, proving surgical malpractice requires meeting certain legal elements. In Florida, you must establish all of the following:

  1. Doctor–Patient Relationship – You must prove that the surgeon agreed to treat you, and you agreed to be treated, creating a legal duty. Once the doctor–patient relationship exists, the surgeon is obligated to provide care that meets the accepted medical standard of care.
  2. Breach of the Standard of Care – The surgeon or surgical team failed to act as a reasonably competent provider would in the same situation (aka the “prevailing standard of care”).
  3. Causation – You must link the surgeon’s breach directly to your injury, which is often the most difficult part of proving a medical malpractice claim.
  4. Measurable Damages – You must have suffered actual, provable harm (physical injury, financial loss, emotional suffering).

If you believe you have grounds for a surgical malpractice lawsuit in Florida, understanding the legal standards and deadlines is essential before moving forward.

In this article, we’ll break down:

What Qualifies as Surgical Malpractice in Florida?

Surgical malpractice occurs when a surgeon or surgical team deviates from the accepted or prevailing standard of care during pre-operative, operative, or post-operative care, causing harm to the patient.

The prevailing standard of care refers to what a reasonably competent doctor in the same specialty would do under similar circumstances. A poor surgical outcome isn’t automatically malpractice—surgery carries inherent risks, and not all complications result from negligence. Only preventable errors or omissions that cause harm may qualify.

To file a surgical malpractice lawsuit, Florida law requires that you prove:

  • A valid doctor–patient relationship existed.
  • The surgeon’s actions (or inaction) directly caused measurable harm (damages), such as physical injury, financial losses, or emotional suffering.

What Surgeries Have the Most Malpractice Claims Against General Surgeons?

General Surgery

High-volume procedures mean more opportunities for errors. Common malpractice claims involve:

  • Cholecystectomies (gallbladder removal), especially bile duct injuries
  • Hernia repairs
  • Breast surgeries (augmentation or reconstruction)

Orthopedic Surgery

Frequent nerve injury claims, particularly in spinal surgeries (especially lumbar spine operations). Knee and hip replacements, as well as shoulder injury claims are other common surgical malpractice claims.

Neurosurgery

Lower frequency of these cases but higher severity in terms of damages. Mistakes can lead to severe and permanent harm, often resulting in substantial compensation payouts.

Urology

Malpractice claims often stem from:

  • Penile prostheses complications
  • Epididymal pathology
  • Varicoceles
  • Surgical procedures on the bladder, kidneys, or reproductive organs

Other Surgical Specialties

Obstetrics and gynecology see high malpractice rates. For example, surgical errors during gynecological procedures are commonplace. In addition, a lack of staffing on obstetrics wards can lead to poor outcomes for mothers and babies following C-sections.

Types of Surgical Malpractice

Wrong-Site, Wrong-Procedure, or Wrong-Patient Surgery

These are “never events”, meaning they should never occur. They happen when:

  • Surgery is performed on the wrong body part.
  • The wrong procedure is performed.
  • The wrong patient undergoes surgery.

They’re often linked to failures in pre-op protocols, such as not marking the site or skipping the required surgical timeout. The Florida Agency for Health Care Administration (AHCA) has reported multiple wrong-site surgeries over the last decade, including orthopedic procedures on the wrong limb and cataract surgeries on the wrong eye. In many cases, hospitals faced both malpractice claims and administrative penalties.

Foreign Objects Left Behind

Also considered a “never event,” retained surgical items (RSIs) include sponges, clamps, gauze, needles, and even scalpels.

Potential consequences:

  • Severe infections that can become life-threatening.
  • Chronic pain and inflammation.
  • Formation of internal scar tissue or adhesions.
  • Need for additional surgeries to retrieve the object.

These incidents occur due to miscounts or ignoring protocols. Under Florida law, the presence of a foreign object after surgery creates a presumption of negligence on the part of the healthcare provider. This presumption is considered mandatory, meaning the burden shifts to the defendant (the healthcare provider or institution) to prove they were not negligent.

According to Florida Statute 766.102:

“…the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.”

Anesthesia Errors

Anesthesia is one of the most sensitive aspects of surgery, and even small mistakes can cause catastrophic harm.

Types of anesthesia errors:

  • Overmedication leading to dangerously low blood pressure or cardiac arrest.
  • Underdosing, causing the patient to wake up or feel pain during surgery (known as anesthesia awareness).
  • Failure to identify and respond to allergic reactions.
  • Neglecting to monitor oxygen levels or vital signs, leading to hypoxic brain injury.

These errors can result in brain injury, coma, or death.

Nerve Damage and Avoidable Injuries

Nerve injuries can occur naturally during high-risk surgeries, but malpractice arises when they are the result of preventable mistakes.

Common causes:

  • Poor surgical technique, such as cutting too close to a nerve bundle.
  • Improper patient positioning during lengthy procedures, leading to compression injuries.
  • Use of surgical instruments in a way that damages nerve tissue.

In the worst-case scenario, nerve damage can result in permanent paralysis.

Internal Bleeding After Surgery

Internal bleeding is a recognized risk in many surgeries, but negligence occurs when:

  • A blood vessel is accidentally cut and not repaired.
  • Post-operative monitoring fails to detect signs of internal bleeding, such as rapid heart rate, low blood pressure, or swelling.
  • A high-risk patient’s clotting ability is not properly evaluated before surgery.

Severe internal bleeding can lead to shock, organ failure, or death if not addressed promptly. Florida malpractice claims in this area often focus on whether post-surgical monitoring met the prevailing professional standard of care.

Post-operative Infections

Common causes include:

  • Poor sterilization of equipment.
  • Unsanitary operating conditions.
  • Neglecting infection symptoms.

Infections such as sepsis can be serious, turning a relatively simple surgical procedure into something with a long recovery time even for a relatively young and otherwise healthy individual. If not caught quickly, infections such as MRSA can be life-threatening.

Some infection risk is unavoidable, but negligence occurs when it’s preventable or improperly treated. See our Hospital Acquired Infections Lawsuit page for more information about this type of medical malpractice case.

Role of Healthcare Settings in Surgical Malpractice

Busy hospitals, a lack of training, and poor equipment can all increase the chances of something going wrong during or after surgery. Some common issues relating to healthcare settings include:

Overworked Staff or Insufficient Expertise

Staff shortages and a lack of specialized training increase surgical error risk, especially if staff fail to follow standard operating procedures.

Teaching Hospitals

Inexperience can contribute to mistakes. Supervised residents may perform complex procedures with limited skill and struggle to respond appropriately to unforeseen problems.

Time of Year

Accidents and errors are more likely during busy times of year, such as:

  • Holidays & flu season: Overloaded hospitals can lead to delays in patients receiving treatment.
  • Staff fatigue: End-of-year burnout can lead to staff cutting corners or making avoidable mistakes.
  • July Effect: New residents starting in July may mean a higher-than-normal number of procedures carried out by inexperienced staff.
  • Weather: Hurricanes and other extreme weather events may increase the load on a hospital, and also disrupt staff availability.

Outpatient Surgical Centers

Shorter monitoring times and faster turnover increase the risk of complications. Poor communication or a lack of guidance and post-op instructions can lead to issues during recovery.

Facilities with Outdated or Poorly Maintained Equipment

Poor equipment maintenance raises surgical failure risk and can lead to avoidable infections, scarring, and other issues, even with minimally invasive procedures.

Understaffed Maternity Wards

Too few staff members monitoring both mother and baby during C-sections leads to higher malpractice incidents.

Cosmetic Surgery Centers

Looser regulations in the field of cosmetic surgery puts patients at risk of infections, complications, and poor outcomes.

Policy and Procedures

Unclear or inconsistent protocols can lead to complications not being caught early enough and can increase the risk of errors during procedures.

Communication Breakdowns in Medical Malpractice

Common failures include miscommunication among the healthcare professionals, including the surgical team, incomplete informed consent from the patient, unclear verbal orders, and inaccurate or missing documentation.

Clear communication is vital throughout the surgical process, including during the pre-op assessment, surgical handoffs, and when post-op instructions are being given.

Healthcare providers should keep accurate electronic records and ensure any handoffs are properly documented. When attempting to prove misconduct, a patient may request copies of written handoffs, electronic health records, and any phone calls.

How Long Do I Have to Sue for Surgical Malpractice in Florida?

Under Florida Statute § 95.11(5)(c):

  • 2 years from when you knew or should have known about the malpractice.
  • 4-year statute of repose: no claim more than 4 years after malpractice, even if undiscovered.

Exceptions:

  • Fraud or concealment: up to 7 years.
  • Minor children: special rules may apply.

Working with an experienced medical malpractice attorney can help ensure your rights are protected and your case brought within the statute of limitations.

What Is the Average Settlement for a Surgical Malpractice Lawsuit in Florida?

The average settlement for a surgical malpractice lawsuit in Florida varies depending on the type of surgery and the extent of the injuries. The typical range is between $15,000 to $250,000. However, those who suffer severe injuries may be able to claim as much as $500,000 or more in compensation.

Factors affecting settlement size include:

  • Injury severity and permanence.
  • Cost of future care.
  • Lost income and earning capacity.
  • Pain and suffering.
  • Strength of evidence.
  • Insurance coverage limits.

What Compensation Can You Recover From Litigation?

When pursuing a medical malpractice lawsuit in Florida, victims may be entitled to various forms of compensation depending on the nature and severity of their injuries. These damages are categorized into economic, non-economic, and, in certain cases, punitive damages, each serving a distinct purpose in addressing the harm caused.

  • Economic damages: payments to cover the cost of medical bills and lost wages. Florida Statute 766.202 (3) defines economic damages, noting that the plaintiff can claim for up to 80% of their lost wages, as well as the cost of current and future medical bills relating to the injury.
  • Non-economic damages: to compensate for emotional distress and reduced quality of life. Florida Statute 766.202 (8) defines non-economic damages as “pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses” that would not have occurred if not for the malpractice. There is a limit of $500,000 on non-economic damages, with the exception of incidents where the injured party is left in a permanent vegetative state, as stated in Florida Statute 766.118.
  • Punitive damages: this kind of compensation is awarded only in cases of reckless conduct but they are subject to strict statutory requirements. A surgical malpractice victim must show intentional misconduct or gross negligence by clear and convincing evidence, and these damages are subject to statutory caps and limitations.

What Proof Do I Need to Win a Surgical Malpractice Lawsuit?

In order to win a surgical malpractice case, there are several key criteria that must be met. Most importantly, there must have been a doctor-patient relationship (creating a duty of care), and that duty must have been breached, causing harm to you, the patient.

Existence of a Doctor–Patient Relationship

You must show that the surgeon agreed to treat you, creating a legal duty of care.

Proof of a Breach of the Standard of Care

Under Florida Statute § 766.102, a plaintiff in a surgical malpractice case must prove by the greater weight of the evidence—meaning it is more likely than not—that the healthcare provider breached the prevailing professional standard of care.

The “prevailing professional standard of care” is the benchmark against which a surgeon’s actions are measured. It is defined as:

“The level of care, skill, and treatment that is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers under the circumstances.”

This means your case is not evaluated in isolation—it’s compared to how another competent surgeon in the same specialty, facing the same situation, would have acted.

Key considerations:

  • The standard is specialty-specific—a neurosurgeon is compared to other neurosurgeons, not to general surgeons.
  • The circumstances at the time matter—emergency surgeries may be evaluated differently than planned elective procedures.
  • The standard is statewide and national, meaning evidence can come from both Florida and out-of-state experts.

Case Example: In one Florida case, a surgeon performing a laparoscopic gallbladder removal accidentally severed the common bile duct. The plaintiff’s expert testified that the standard of care required conversion to an open procedure once visibility became impaired. The jury found a breach because the surgeon continued laparoscopically despite the risk.

Steps to File a Surgical Malpractice Lawsuit in Florida

Filing a surgical malpractice lawsuit in Florida is not a single event—it’s a structured legal process with multiple stages, each of which can make or break your case. Understanding what happens at each step can help you prepare and avoid costly mistakes.

1. Gather Medical Records and Evidence

The first step is to secure every piece of relevant documentation. This includes:

  • Any surgical consent forms that were signed before the operation.
  • Operative reports detailing what occurred in the operating room.
  • Anesthesia records showing dosages, monitoring notes, and vital sign logs.
  • Post-operative notes from the hospital or surgical center.
  • Radiology images (e.g., X-rays, CT scans, MRIs) before and after the surgery.
  • Copies of correspondence between you and the surgical team, such as discharge instructions or follow-up recommendations.

In Florida, hospitals and healthcare providers are required by law to produce medical records upon request, but they can take up to 30 days to respond. Acting early ensures your attorney can begin analysis without delay.

2. Obtain an Expert Affidavit (Corroborating Medical Opinion)

Florida law requires plaintiffs to attach an expert affidavit to their claim before filing a lawsuit. This is a sworn statement from a licensed healthcare provider in the same specialty as the defendant (for example, a board-certified general surgeon if you are suing a general surgeon) confirming that there is a reasonable basis to believe malpractice occurred.

The expert will review your records, compare them to the prevailing professional standard of care, and identify specific deviations. Without this affidavit, your case will likely be dismissed.

3. Serve a Notice of Intent to Sue

Before filing in court, you must send a formal Notice of Intent to every healthcare provider you plan to sue. This notice outlines:

  • The alleged acts of negligence.
  • The injury or harm caused.
  • Supporting medical evidence.

The Notice triggers the 90-day pre-suit investigation period, during which the defendants and their insurers review your claim and may conduct their own medical evaluations.

4. Wait for the Pre-Suit Investigation Period to Conclude

During this period, the healthcare provider’s insurer must respond in one of three ways:

  1. Admit liability and offer settlement.
  2. Reject the claim
  3. Propose arbitration.

For you, this is a time to strengthen your case by gathering medical records, consulting with experts, and evaluating your damages, including the long term impacts of the malpractice on your daily activity. If negotiations occur during this stage, they may result in a settlement before a formal lawsuit is filed.

5. File the Formal Complaint in Court

If no resolution is reached, your attorney will draft and file a formal complaint in the appropriate Florida circuit court. This document lays out the factual allegations, legal basis for the claim, and the damages you’re seeking.

The defendants will be given 20 days to file an answer, admit or deny the allegations, and assert any defenses.

6. Go Through Discovery, Negotiation, or Trial

Discovery is often the longest stage of a surgical malpractice case. It involves:

  • Depositions of witnesses, surgeons, nurses, and experts.
  • Requests for Production – this where there is an exchange of documents, including internal hospital policies and incident reports.
  • Interrogatories (written questions) to clarify facts.

During or after discovery, settlement negotiations may take place. If an agreement is reached, the case concludes without trial. If not, the case proceeds to a jury trial, where your attorney presents evidence, cross-examines witnesses, and argues your claim.

Because surgical malpractice cases often involve complex medicine, expert testimony is essential for the jury to understand what went wrong and how and why it was avoidable.

If you’d like to learn more about these steps, check out our detailed How to File a Medical Malpractice Lawsuit in Florida guide.

Have a Question?

If you believe you’ve been harmed due to a surgical error, contact experienced medical malpractice attorney Alan Sackrin for guidance.

Call us at (954) 458-8655 or contact us online to schedule a consultation.
 
 
 

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