Failure to Treat in Florida

About Failure to Treat

Failure to treat occurs when a healthcare provider correctly diagnoses a condition but fails to provide appropriate treatment, refer the patient to a specialist, or follow established treatment protocols. This form of malpractice can be particularly frustrating for patients who sought care, received a correct diagnosis, and then experienced harm because the necessary next steps were never taken. These cases often involve systemic issues such as overloaded physicians, poor follow-up systems, or cost-driven treatment decisions.

Florida Medical Malpractice Laws

Common Examples of Failure to Treat

• •Failing to prescribe appropriate medication after diagnosing a treatable condition
• •Not referring a patient to a specialist when the condition requires specialized care
• •Discharging a patient without an adequate treatment or follow-up plan
• •Ignoring or failing to act on abnormal test results that confirm a known diagnosis
• •Failure to provide appropriate post-surgical care or rehabilitation
• •Not ordering necessary follow-up imaging or biopsies after an initial diagnosis
• •Providing treatment that is outdated or inconsistent with current clinical guidelines

Key Facts

• ✓Failure to treat is legally distinct from misdiagnosis — the provider identified the condition correctly but did not act on it appropriately
• ✓Clinical practice guidelines from medical specialty organizations are often introduced as evidence to show what the standard treatment should have been
• ✓These cases frequently involve gaps in care coordination, particularly when multiple providers or healthcare systems are involved in a patient's treatment
• ✓Electronic health records that show a diagnosis was documented but no corresponding treatment plan was entered can be powerful evidence of failure to treat
• ✓Insurance-driven treatment denials may contribute to failure to treat, but the treating physician still has a legal duty to advocate for and pursue medically necessary care
• ✓Expert testimony in these cases typically focuses on what a competent physician in the same specialty would have done after reaching the same diagnosis
• ✓Florida's damage caps were ruled unconstitutional in Estate of McCall v. United States (2014, wrongful death) and North Broward Hospital District v. Kalitan (2017, personal injury).
• ✓Florida requires a mandatory pre-suit investigation period of 90 days, during which both parties must cooperate with informal discovery.
• ✓The state follows a modified comparative negligence standard with a 51% bar (amended in 2023 from pure comparative negligence).
• ✓Expert witnesses must be licensed, have active clinical practice, and specialize in the same or similar area as the defendant.
• ✓Punitive damages are capped at the greater of $500,000 or three times the compensatory damages.