You must complete specific requirements in Florida before filing a medical malpractice lawsuit in court. Pre-filing requirements for Florida medical malpractice claims ensure that your case complies with state regulations and that you’ve done your due diligence when investigating and notifying the liable parties. It is important to note that failure to comply with the Florida pre-suit medical malpractice requirements may result in the dismissal of the medical malpractice lawsuit.
A medical malpractice lawyer in Florida can help you meet these pre-filing requirements and ensure your case proceeds on schedule.
Step One: The Pre-suit Investigation
Under Florida law (F.S. §766.104), a pre-suit investigation must occur before filing a medical malpractice lawsuit. This investigation’s primary goal is to ensure that there is reasonable evidence to support each claim and prevent frivolous lawsuits. One way to prove medical malpractice is to obtain a written opinion from an expert stating that there is evidence of medical negligence. The written statement is often referred to as a “pre-suit expert affidavit.”
The pre-suit expert affidavit must be prepared by a qualified medical expert who provides an opinion as to whether or not the defendant healthcare provider breached the applicable standard of care and whether this breach caused the plaintiff’s injuries.
During this investigation period, the statute of limitations (the time limit to file a lawsuit) is paused for 90 days, giving the claimant more time to conduct a thorough investigation. No court order is needed for this pause to occur. The medical expert must sign the affidavit and must include specific information about the expert’s qualifications, the expert’s opinion regarding the standard of care, and the factual basis for the expert’s opinion.
During your pre-suit investigation, your lawyer will look to establish the critical elements of a medical malpractice lawsuit.
- The healthcare provider owed you a duty of care (a doctor-patient relationship is one example of this)
- The doctor or healthcare institution provided substandard care (the provider deviated below the ordinary standard of care)
- Their negligence caused your injuries
- Your injuries resulted in significant harm
If your lawyer determines that your case meets these criteria, they will continue the process of filing a Florida medical malpractice lawsuit.
Step Two: Notifying the Defendants
Once you and your Florida medical malpractice lawyer complete the pre-suit investigation, you must notify each prospective defendant of your intent to sue. You must serve this notice for at least 90 days before filing a medical malpractice lawsuit.
This notice must include relevant and important information, such as:
- The names of all healthcare providers who treated you after the medical negligence occurred
- The names of all healthcare providers who treated you two years before the incident
- A health information release form
- Copies of medical records
- An expert affidavit from a medical provider in the same field specifying how the medical provider acted negligently
When they receive this notice, they will have just 90 days to conduct their pre-suit investigation. During this time, the claimant cannot file a lawsuit, and the statute of limitations is paused.
Step Three: Waiting For the Defendant to Conduct Their Own Pre-suit Investigation
After you notify the defendant, such as a doctor or healthcare facility, of your intent to file a medical malpractice lawsuit, you must wait for them to conduct their own pre-suit investigation. During this time, both parties exchange information and documents and make statements.
The negligent healthcare provider and their legal team have three options for their investigation:
- Conduct an internal review
- Create a panel with professionals
- Work with a professional society
This investigation aims to determine whether or not they believe that the defendant acted negligently and if that negligence caused harm.
The negligent doctor and legal team must respond to your claim within 90 days. They can reject the claim, make a settlement offer, or offer to arbitrate. If they reject the claim, they must provide a written opinion from a medical expert that explains why there are no reasonable grounds for the lawsuit.
Even if the negligent healthcare provider rejects the claim, you and your Florida medical malpractice lawyer can still file a lawsuit at any time.
Is It Medical Malpractice or Regular Negligence?
Under Chapter 766 of the Florida statutes, just because a wrongful act occurs in a medical setting does not necessarily mean it is considered medical malpractice. The act must be related to professional judgment, skills, or the improper application of medical services.
Florida has a two-step process to determine if a claim is considered medical malpractice. The first step is determining if the wrongful occurred during medical diagnosis, treatment, or care. The second step is to determine if a healthcare provider provided the treatment.
Florida Case Highlighting Medical Malpractice vs. Negligence
The Third District Court of Appeal in Florida recently decided in a case where a surgical table collapsed on a patient during eye surgery. The patient sued the facility for not warning him about the table and not using it properly. The facility tried to dismiss the case, saying that it did not fall under Florida’s medical malpractice law. The court had to decide whether the case was about regular negligence or medical negligence.
The court decided it was about regular negligence because the problem was with the collapsing table and not anything related to medical treatment. The court said that just because something happened in a medical setting doesn’t always mean that it is medical malpractice. The court also used examples from other cases to support its decision.
Set Up A Free Case Evaluation With a Florida Medical Malpractice Attorney
If you or a loved one have suffered an injury due to medical negligence in Florida, it is crucial that you seek the legal help you deserve. As a Florida medical malpractice attorney, Prosper Shaked is here to help you understand your rights and guide you through the legal process.
Don’t let the responsible party get away with causing you harm. Medical malpractice cases can be complex and challenging to navigate, but with our expertise and dedication, we can work together to achieve justice for you and your loved ones.
Call Prosper Shaked Accident Injury Attorneys PA today to schedule a free, confidential consultation, and let’s start working towards the compensation and closure you deserve. Our phone number is (305) 694-2676.