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Medical & Dental Malpractice and the Mandatory Pre-Suit Period

Posted 29 Nov 2015 by


Medical Malpractice Photo

Medical & Dental Malpractice and the Mandatory Pre-Suit Period

Much of this came from “Presuit Nuts ’n Bolts” by Edward J. Carbone. Credit to Attorney Carbone for his diligent research and correct statement of the law.

What is a medical malpractice case and how does it begin?

The law desires to protect doctors, as they offer important services in Florida and Florida wants to protect good medical professionals from refusing to practice in the state. Florida’s approach to medical malpractice reform began in 1985 by requiring potential plaintiffs in medical malpractice cases to provide a notice of intent to each prospective defendant, and to certify in any eventual complaint that they had conducted a reasonable investigation resulting in a good faith belief that sufficient grounds existed to support the filing of the action. Someone cannot merely “sue” a doctor without 3-4 months of work behind the scenes.

In 1988, the Florida Legislature added a “pre-suit investigation” requirement, which included provisions requiring potential parties to conduct “informal discovery” before a complaint can be filed. Florida’s “pre-suit” statutory requirement has been modified several times since then, with the most recent revisions coming as part of the comprehensive medical malpractice reform special legislative session in 2003.

All claims for “medical negligence” are subject to the statutory pre-suit requirements. A claim for medical negligence is defined as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The only exceptions are where the treatment did not stem from the rendering of treatment, such as cases of sexual battery on a patient or things that happen outside of the scope of medical services- a fall in the lobby for instance or a coffee burn.

Essentially, one must look to what the medical professional will say as a defense- was this caused during treatment? It does not matter if the doctor is under investigation for intentional harm, as the criminal investigation is entirely separate. It may hinder insurance coverage, but it does not change the pre-suit requirements. You can’t simply “plead around” the pre-suit requirements if the incident happened during the rendering of treatment or for failing to render treatment the doctor was supposed to.

In general, if the conduct that led to injury was a part of the patient’s treatment, pre-suit requirements apply.

What can I expect?

Section 766.203(2) succinctly imposes upon medical malpractice claimants two simple obligations which take 3-4 months before suit can be filed. First, they must conduct a reasonable investigation — before sending a Notice of Intent to the medical professional— to ascertain a) that there are reasonable grounds to believe that any named defendant was negligent and b) that such negligence resulted in injury to the claimant. Second, they must obtain corroboration of reasonable grounds to initiate medical negligence litigation by obtaining a verified written medical expert opinion supporting the victim’s theory.

How does it start?

It starts with a simple letter requesting records. Section 766.204 assists claimants in undertaking a reasonable investigation by requiring record holders to supply copies of medical records within 10 business days of a request for copies. Failure to comply, or failure to charge a reasonable charge for the copies, constitutes evidence of that party’s failure to comply with good faith discovery requirements and, more importantly, “shall waive the requirement of written medical corroboration by the requesting party.” In other words, if a health care provider fails to provide records within 10 business days of a claimant’s request, that health care provider is no longer entitled to a written opinion corroborating any eventual claim against it.

If records are sent, another similar medical professional must say the defendant medical professional did something wrong. The written opinion is nothing more than a medical expert’s confirmation that reasonable grounds exist for a medical negligence claim. The purpose of the written opinion is to assure that the claim is not a “frivolous” medical malpractice claim. It also serves to assure potential defendants that the claim was preceded by a reasonable investigation. It is not required to delineate exactly how the potential defendant was negligent.

Once that affidavit is obtained, it should be sent with a formal notice of the claim called a Notice of Intent. When a prospective defendant receives a Notice of Intent, that begins a 90-dayperiod during which the claimant must still refrain from filing suit against the prospective defendant, and the prospective defendant is obligated to conduct a review to determine its liability for the claim against it. The parties may agree to extend this period.

4 ways the Defendant can end the pre-suit period

At the end of the pre-suit investigation period, a prospective defendant must choose one of the four possible responses authorized by chapter 766. The prospective defendant may reject the claim, make a settlement offer, offer to admit liability and proceed to arbitration on the issue of damages, or do nothing, which will be deemed to be a rejection of the claim. Regardless of the response chosen by the prospective defendant, the response serves to terminate the pre-suit investigation period.

A suit can then be filed.

Sanctions

If a lawyer has failed to comply with this statute, 766.206(4) states,

“If the court finds that an attorney for the claimant mailed notice of intent to initiate litigation without reasonable investigation, or filed a medical negligence claim without first mailing such notice of intent which complies with the reasonable investigation requirements, or if the court finds that an attorney for a defendant mailed a response rejecting the claim without reasonable investigation, the court shall submit its finding in the matter to The Florida Bar for disciplinary review of the attorney.”

Further, 766.206(2) states,

“the person who mailed such notice of intent, whether the claimant or the claimant’s attorney, is personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the defendant or the defendant’s insurer.”

Further, there are also additional sanctions which can be imposed for other errors in the complaint.

Hiring a lawyer

Before you hire a lawyer if you or your family member was injured as a result of medical negligence, ask questions. How many times have you handled medical malpractice cases? How many injury or death cases have you taken to trial? How many doctors depositions have you taken? Have you, your firm or lawyers been accused of legal malpractice or bar violations?

These matters are complicated and medical malpractice is not something which you should trust to those who aren’t properly trained.

More Information:

General Information About Dental Abuse Civil Cases:

Case Against Howard S. Schneider:

National News Stories About Schneider Case:

Other Resources:

Evidence Locker:


The Law Offices of John Phillips are based in Jacksonville and Jacksonville Beach, Florida, but John is licensed in Florida, Georgia and Alabama and before the U.S. Supreme Court. We will consult wherever injustice lives. In addition to personal injury and wrongful death, our firm handles family law matters and select criminal defense cases. You can contact us at help@floridajustice.com.

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