Florida’s Pre-Suit Medical Malpractice Procedures
Medical malpractice claims in Florida are governed by specific statutory requirements, one of which is the pre-suit screening process outlined in Florida Statute §766.106. Unlike other types of personal injury cases, medical malpractice cases mandate injured parties to strictly follow the procedural requirements of this statute before they are permitted to file a lawsuit.
Understanding these steps is vital for anyone considering a medical malpractice claim, as they dictate how potential plaintiffs must proceed and establish initial proof of the alleged negligence. Failure to strictly adhere to this statute can result in the complete dismissal of a claim.
Key Provisions of Florida Statute §766.106
Definition and Scope: The statute defines a “claim for medical negligence” or “medical malpractice” as one arising from either the provision or the failure to provide medical care or services. This broad definition encompasses a range of medical providers and situations.
Presuit Expert Affidavit: In order to bring a claim against a health care provider, an injured party must have an expert witness of the same specialty review the relevant medical records and sign an affidavit setting forth his or her opinion corroborating that the health care provider fell below the acceptable standard of care and caused the patient a significant injury.
Pre-Suit Notice Requirements: Before filing a lawsuit, claimants must then notify each prospective defendant about their intention to initiate litigation. This notification can be done through various verifiable means, such as certified mail, tracked USPS mail, a commercial delivery service, or legal process servers. This affidavit of the corroborating expert, along with medical records relied upon by that expert, must accompany the Notice of Intent. Providing this notice is crucial as it triggers a series of legal requirements and deadlines. If a party fails to follow all of the specific guidelines regarding the notice of intent, any future lawsuit can be dismissed.
Presumption of Delivery: The notice is presumed to have been received if it was sent to the defendant’s address listed with relevant state agencies. If a defendant disputes receiving the notice, a court hearing is required to examine the evidence.
Mandatory Presuit Investigation: Upon receiving notice, the prospective defendant has 90 days to conduct their own investigation to determine liability. This period is crucial as it allows both parties to engage in informal discovery processes, such as exchanging medical records and conducting interviews without formal litigation. Again, if a party fails to comply with discovery requests during this 90 day presuit period, a future claim can be dismissed.
Response to the Claimant: After the investigation, the defendant must respond by either rejecting the claim with their own expert affidavit, making a settlement offer, or offering to admit liability and proceed to arbitration on damages alone.
Legal Implications for Plaintiffs
Strategic Importance of Pre-Suit Notice: Notifying defendants before filing a lawsuit serves multiple purposes. It allows defendants to prepare and possibly prevent litigation through early settlement. For plaintiffs, complying with these notification requirements is essential to avoid dismissal of their claims.
Navigating the Investigation Period: The 90-day investigation period is a critical time for plaintiffs. During this time, they should collaborate with their legal counsel to gather and present compelling evidence supporting their claim. This phase can significantly impact the case’s outcome, as the information exchanged can possibly lead to early resolution or define the litigation strategy if the case proceeds to court.
Challenges of Proving Service: Ensuring that the notice of intent to litigate is properly served and acknowledged by the defendant is a foundational step in the pre-suit process. Plaintiffs must ensure that service is correctly executed to avoid disputes that could delay or jeopardize their case.
Impact of Tolling the Statute of Limitations: The statute provides that the statute of limitations is tolled upon the serving of the notice, giving plaintiffs additional time to file a lawsuit if the pre-suit process extends beyond the original statute of limitations. Understanding this tolling provision is crucial for plaintiffs to manage their timelines effectively.
Contact Smith, Ball, Báez & Prather
Florida Statute §766.106 sets a high procedural bar for initiating such lawsuits, emphasizing the need for thorough preparation and strict adherence to legal protocols. At Smith, Ball, Báez & Prather, our experienced medical malpractice attorneys are adept at managing these complex pre-suit requirements and advocating for the rights of those injured by medical negligence. If you believe you have a medical malpractice claim, contact us today to ensure that your rights are protected throughout this critical initial phase of your case.
Source:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.106.html
