Florida Medical Malpractice Pre-suit Rules
Medical malpractice can result in very real, catastrophic and debilitating injuries. We see and hear examples all the time of circumstances of medical malpractice, such as a surgeon removing the wrong limb, or leaving an instrument or a sponge inside a patient. Wrong diagnoses, anesthesia errors and birth injuries are other examples of medical malpractice.
Medical malpractice is a type of professional negligence, and injuries that result from it should be compensated. According to the American Medical Association, medical malpractice is the third leading cause of death in the U.S., with heart disease and cancer in the top two spots.
In Florida it can be a little more complicated to pursue a medical malpractice claim than in other parts of the country. In 1985 the legislature created a series of steps that must be undertaken before a medical malpractice suit can be commenced. The purpose of this legislation was to discourage frivolous lawsuits, but the result has been that it can be difficult to undertake a medical malpractice lawsuit (Learn More).
While this process can be lengthy, it should not deter you from pursuing a medical malpractice claim if you have been injured as a result of professional negligence. You need experienced medical malpractice litigators who can efficiently navigate this maze of regulations.
Where Do We Begin?
Your attorney is the key to successfully pursuing a medical malpractice claim. In a “regular” negligence case, like a vehicle accident or a dangerous condition that causes a person to fall, you can hire an attorney and they can immediately initiate a lawsuit.
Not so with a medical malpractice claim. The attorney must first investigate the claim to make sure there are reasonable grounds to believe the professional negligence occurred, and an injury was the result of that negligence.
Next, the attorney must obtain your medical records from the various health care providers, and review them.
The next step is for the attorney to send the records to a medical expert who is a “similar health care professional.” In other words, if your issue has to do with an orthopedic surgeon’s professional negligence, you need another orthopedic specialist to review the records. This part of the law makes sense – you wouldn’t want a bone specialist opining on brain surgery.
This expert must then render a “verified written medical expert opinion.” This is really an affidavit that swears he or she has reviewed the medical records and believes, in their expert opinion, that there are reasonable grounds to proceed with a lawsuit.
Now, with expert opinion in hand, the attorney sends that opinion attached to a “Notice of Intent to Initiate Litigation for Medical Negligence” and sends it to the prospective defendants, and any requisite state agencies. This document sets out the plaintiffs and defendants, and a summary of the claim for injuries.
You might think that completing this step begins the litigation, but it does not. The prospective defendants have 90 days from the day of the mailing to conduct their own investigations. This includes written questions to the parties involved, requests for documents and items, physical or mental examinations and even unsworn statements. (This informal discovery included, for a short period, statements from other medical professionals that treated the plaintiff, but that part of the statute was struck down as violating the federal HIPPA rules.)
Surely, NOW we can file suit?! Not yet. After this 90 day period of “pre-suit investigation” the defendant has a number of options. Under the statute, the defendant may (1) reject the claim (2) make a settlement offer or (3) make an offer to arbitrate the proceedings in which liability is deemed admitted – the only issue then becomes damages. Often these offers to arbitrate may include a limit on general damages.
Generally speaking, most defendants in medical malpractice claims reject the claim and let it move along to litigation. It is rare to have a settlement offer made or an offer for arbitration – as a practical matter, it happens only in cases where the professional malpractice is egregious or completely undisputed.
What Happens if We Miss a Step?
The consequences for missing a step in this process can be severe. It may mean that your claim is foreclosed and there will be no recovery. Medical malpractice insurance companies relish claims that are not processed correctly, because it means they will not have to defend a claim, or pay on a successful claim.
Interestingly, the statute really protects the medical professional in that if they do not respond to an initial claim within that 90 day time frame, the claim is deemed rejected, which only benefits them and their insurance company. They can still defend any action within the bounds of the litigation, and conduct discovery. In regular litigation, if a defendant does not respond, a default judgment for plaintiff can be entered. This rule is a great departure from usual procedure.
Do Not Delay!!
If you or a loved one has been injured as a result of medical malpractice, you need to swiftly pursue your rights. The statute of limitations (the time within which you can bring a lawsuit) for medical malpractice is two years in Florida. This shorter time period also benefits the medical community and its insurers.
For this time of claim, you really need dedicated attorneys who are experienced in this area of law. The pre-suit rules are very precise, the consequences for not following them are severe, and you cannot afford to “sit on” your rights to compensation. Consult with experienced medical malpractice counsel to get the process started. Medical malpractice suits can be complex, but don’t let the red tape keep you from getting the compensation you deserve.