Medical malpractice lawsuits are always challenging. They are frequently emotionally charged and are challenging to investigate and litigate.
The facts in a medical malpractice case involving as they do, medical procedures, require specialized knowledge and in-depth understanding. In addition, the law governing these cases is complex. Because physicians are held to a higher standard of care, these personal injury actions require expert testimony to prove that a medical professional fell below the applicable standard of care.
All of which should make clear that filing a medical malpractice lawsuit is something that should be undertaken with care and only after careful consultation with an experienced medical malpractice attorney.
In addition, Florida is one of the few states that has statutory procedures designed to restrict the filing and prosecution of medical malpractice claims.
Florida’s Medical Malpractice Act
Florida’s Medical Malpractice Act (the “Act”), enacted in 1988, has undergone major reform over the years. In large part these reforms have been made in response to a perceived litigation crisis affecting the medical industry.
In 1995, Florida reformed its approach to medical malpractice actions by instituting a “notice” requirement that requires all plaintiffs in medical malpractice cases to provide a Notice of Intent (to sue) to each potential defendant.
Another reform in 1998 added the “presuit” requirement. This reform mandates that all plaintiffs conduct a reasonable investigation culminating in a good faith basis for filing the lawsuit.
In the interests of avoiding meritless cases and promoting early settlement of medical malpractice actions, Florida’s Medical Malpractice Act has 2 main components:
- the presuit investigation process, and
- a voluntary arbitration process.
Although the rationale behind Florida’s presuit requirement is simple —i.e., to weed out meritless claims at the very inception of an action—the laws and judicial interpretation of those laws are highly complex. This is simply one of many reasons why you should not attempt to handle your own medical malpractice, but should consult with our experienced medical malpractice attorneys.
As we will discuss further below, complying with Florida’s presuit requirements is critical to any malpractice lawsuit.
Florida’s Presuit Investigation Requirements
In Florida, before a claimant can send a notice of intent, and prior to filing a lawsuit, he or she must conduct an informal investigation of his/her claims.
The laws and interpretation of the governing the presuit investigation are many and quite complex.
Distilled to its basics, however, the investigation must be conducted in good faith and its purpose is to determine whether reasonable grounds exist for believing that the defendant was negligent and that his or her negligence resulted in the claimant’s injuries.
If the court finds that the investigation was not conducted in good faith, or that any party acted unreasonably with regard to his duties of presuit investigation, the court may dismiss a plaintiff’s claim or a defendant’s defenses.
In addition to conducting a presuit investigation in good faith, a medical malpractice claimant must have his/her findings (i.e., that reasonable grounds exist for the claim) corroborated by a medical expert.
This corroboration must be in writing and in the form of a written verified medical expert opinion.
While the medical expert opinion need not set out the plaintiff’s theory of the case or describe how the defendant was negligent, it must nonetheless clearly indicate that in the medical expert’s opinion, the claim has merit.
Informal Presuit Discovery is Required
If the presuit investigation has given rise to the filing of a Notice of Intent, Florida law requires that presuit discovery to be conducted before a claimant can file a medical malpractice action.
Discovery is the civil law procedure that allows the parties to examine and exchange information regarding their claims and defenses. Discovery’s purpose is to allow the parties to evaluate their respective positions to avoid “surprise” at trial, and in the hope of encouraging settlement.
While presuit discovery is not formal discovery, nor extensive discovery, it nevertheless is sufficient to allow both parties to evaluate the facts and evidence supporting the claims of medical malpractice.
If the presuit discovery results in the service of a Notice of Intent, prospective defendants are given time to evaluate the claims. They also have several different ways that they may respond to the claims.
A prospective defendant’s receipt of a Notice of Intent triggers his duty to conduct his own investigation. During this time, (90 days) the claimant may not file his lawsuit.
Florida’s Presuit Requirements—Lengthy and Strict
As is evident from even a brief discussion of Florida’s presuit requirements, the process is a lengthy, complicated, strict, and expensive one.
Without question, it presents considerable hurdles for a medical malpractice claimant.
Nevertheless, those with medical malpractice claims that have merit should not hesitate to contact a Florida medical malpractice attorney. Our experienced team can guide you through the process and help you get the compensation you deserve.
Medical Malpractice Attorneys Ready to Help
Florida medical malpractice lawyer John Fagan and his experienced team are dedicated to helping those who have been injured due to the negligence of another. If you have been injured due to the negligence of a medical service provider, contact us now for your free consultation or simply call our firm at: 777-JOHN. We serve clients throughout Florida. Our main office is in Orange Park. We have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.