Burden of Proof

Under section 766.102, Florida Statutes, a person seeking to recover for death or injury that resulted from medical malpractice or “negligence of a health care provider,” “shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.”

And “[t]he prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Id.


[i]f the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

§ 766.102(2)(a), Fla. Stat. (emphasis added).

Under 766.201(2)(b), these provisions “apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.” (Section 766.103, Florida Statutes, is known as “Florida Medical Consent Law.” That Law is discussed here.)

Under 766.102(3)(b), “[t]he existence of a medical injury does not create any inference or presumption of negligence against a health care provider.” Instead, “the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider.” Id. “Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action.” Id.

But “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.” Id. (Emphasis added.)

According to the Florida Supreme Court, the phrase “prima facie evidence” creates a permissive inference. State v. Rolle, 560 So. 2d 1154, 1157 (Fla. 1990). This is a “common evidentiary device” that “allows—but does not require—the trier of fact to infer the elemental fact [of negligence].” County. Court of Ulster County., N. Y. v. Allen, 442 U.S. 140, 157 (1979).

As to the duty to perform testing, under section 766.102(4), “[t]he failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.”

Yet, under 766.111, no medical doctor, osteopath, chiropractor, podiatrist, or dentist “shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient’s condition.” A “violation of this section shall be grounds for disciplinary action . . . .” § 766.111(2), Fla. Stat. And, “[a]ny person who prevails in a suit brought against a health care provider predicated upon a violation of this section shall recover reasonable attorney’s fees and costs.” § 766.111(2), Fla. Stat.

If you or anyone you know needs a lawyer to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!

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