What Evidence Is Used to Determine if a Doctor Acted Negligently?

Doctor Acted NegligentlyMedical malpractice cases alleging negligence by doctors and other healthcare providers can be especially difficult, particularly if you are also dealing with severe injuries and medical bills at the same time. The complexity of these cases, and the uphill battle required to win them, requires an experienced medical malpractice attorney.


Burden of Proof

According to Florida law, the existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant maintains the burden of proving that an injury was caused by a breach of the professional standard of care (or that level of care which is recognized as acceptable and appropriate by reasonably similar providers).


The Process

Your attorney will first be required to undertake a reasonable investigation to determine if there are grounds for a good faith belief that the claimant received negligent medical care and to certify this in a complaint or pleading. Typically, good faith is shown via an expert’s written opinion that there is evidence of medical negligence.


During informal discovery, any party may require other parties to appear for the taking of an unsworn statement; however, those statements are not discoverable or admissible in any civil action. Parties may also request such documents as medical records, answers to written questions, and interviews of treating health care providers (see relevant statutory provisions).  If the parties can find some agreement, the case may be settled pre-trial, but if they cannot, the case will proceed to trial.


Claimants seeking to bring a medical malpractice case must follow a presuit investigation procedure before issuing notification of the intent to initiate litigation. After the presuit investigation and discovery process is completed, any party may request the court to determine whether the opposing party’s claim or denial is reasonably based. If the court finds that the claimant has not complied with certain requirements specified above, the court must dismiss the claim.



Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the claimant is not admissible as evidence in any medical negligence action. Any investigations, proceedings, and records of a committee also cannot be admitted into evidence.


However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgery or diagnostic procedures constitutes prima facie evidence of negligence on the part of the doctor or healthcare provider.


After presenting evidence of a doctor-patient relationship, and evidence that the doctor made unreasonable mistakes, claimants also need to show evidence that the doctor’s actions or failure to act caused claimant’s injuries and they were not preexisting or attributable to another cause, such as separate medical condition. Claimants will often use additional expert testimony to help establish this element.


Some medical malpractice cases are characterized as a “battle of the experts” because these cases can come down to conflicting scientific explanations and expert opinions. Since 2013, Florida courts have adhered to the Daubert hearing method, where a judge must consider evidence presented to determine whether an expert’s testimony rests on a reliable foundation and is relevant to the case. Specifically, Florida courts must determine whether:


  • The expert’s testimony is based upon sufficient facts or data;
  • The expert’s testimony is the product of reliable principles and methods; and
  • The expert applied the foregoing principles and methods reliably to the specific facts of the case.


This makes the pretrial preparation of expert witnesses crucial in helping to shape which scientific evidence is presented at trial.



A 2011 study in the New England Journal of Medicine reported that there is substantial variation in the likelihood of malpractice suits and the size of indemnity payments across specialties. The cumulative risk of facing a malpractice claim is high in all specialties, although most claims do not lead to payments to claimants. The study also found that most settled claims involve medical error, and most-all claims that do not present evidence of error are denied compensation.


A separate study from 2014 found that the number of medical malpractice payments in the United States has dropped sharply since 2002, and compensation payment amounts and liability insurance costs for most doctors remained flat or declined in recent years.

Contact an Experienced Attorney

There are several hurdles that claimants must get over in proving that a doctor acted negligently. The first step is ensuring that you have an experienced attorney look at your case and discuss whether you have a viable claim. It is crucial that you obtain an attorney who is well versed in dealing with complex medical evidence in medical malpractice claims, as well as the settlement process. Brill & Rinaldi is dedicated to providing the highest standard of legal representation to our clients – contact us today for a free consultation.