What Are the Florida Medical Malpractice Pre-suit Requirements?
Gregg Hollander | October 22, 2024 | Medical Malpractice
Filing a medical malpractice lawsuit in Florida is complex and highly regulated. Due to the sensitive nature of medical malpractice claims and their potential impact on healthcare professionals and institutions, Florida law has established a specific legal framework that must be followed before filing a lawsuit. Failure to follow the requirements set by the law can result in injured parties not receiving the compensation they deserve for their injuries. As such, it’s imperative that anyone who thinks they might have a valid medical malpractice case contact a Florida medical malpractice attorney as soon as possible. A West Palm Beach medical malpractice lawyer can help ensure all the requirements are met, and the deadlines are followed. They will fight for fair compensation on your behalf.
Florida Statute §766.106
One of the most critical aspects of the medical malpractice framework is the pre-suit screening process, governed by Florida Statute §766.106. This process sets Florida apart from other personal injury cases by imposing strict procedural requirements on those seeking medical malpractice claims.
Understanding and adhering to these requirements is essential for anyone pursuing a medical malpractice claim, as failure to comply can result in the complete dismissal of the lawsuit. A Florida medical malpractice lawyer will help you understand the statutory steps in filing a medical malpractice claim in Florida and offer insight into what you should know before moving forward.
What is Medical Malpractice?
Medical malpractice occurs when a healthcare provider, such as a doctor, nurse, hospital, or clinic, fails to provide the standard of care expected within the medical community, harming a patient. This harm can occur due to misdiagnosis, improper treatment, surgical errors, medication mistakes, or failure to provide appropriate follow-up care.
In Florida, medical malpractice claims fall under the umbrella of personal injury law, but they are distinct from other types of injury cases because of the particular legal requirements. Unlike a typical personal injury claim, where an injured person can directly file a lawsuit, a medical malpractice plaintiff (person bringing the claim) must first go through a pre-suit screening process to determine whether the case has merit.
Key Provisions of Florida Statute §766.106
Definition and Scope of Medical Malpractice Claims
Florida Statute §766.106 defines a “claim for medical negligence” or “medical malpractice” as one that arises from either the provision of or failure to provide medical care or services. This definition means that a wide range of healthcare providers, including doctors, nurses, hospitals, and even certain specialists such as chiropractors or physical therapists, can be subject to medical malpractice claims if their actions (or inactions) lead to patient harm.
The scope of medical malpractice claims in Florida is not limited to a single type of injury or malpractice; it encompasses errors in diagnosis, surgery, treatment, follow-up care, and even failures to obtain informed consent before a procedure.
Pre-Suit Expert Affidavit
One of the first steps in the pre-suit process is requiring a pre-suit expert affidavit. It is a critical component of any potential medical malpractice claim, as it provides initial proof that the healthcare provider’s negligence caused harm.
To meet this requirement, the injured party must retain an expert witness who practices in the same specialty as the healthcare provider being sued. This expert must review the relevant medical records and sign an affidavit affirming that, in their opinion, the healthcare provider failed to meet the standard of care expected within the medical community and that this failure caused a significant injury to the patient.
The medical expert will review the case details, including medical records, diagnostic tests, and other relevant documents, to determine whether the healthcare provider breached the standard of care. The standard of care refers to the level of care and skill that a reasonably competent healthcare provider would provide in similar circumstances. If the medical expert believes there is a breach of the standard of care and that it directly caused harm to the patient, they will provide a written opinion stating their findings.
The pre-suit affidavit must be thorough and well-supported because it acts as the foundation for the entire case. Without it, you cannot proceed with a medical malpractice lawsuit in Florida.
Pre-Suit Notice Requirements
Before a lawsuit can be filed, Florida law mandates that the injured party notify each prospective defendant of their intent to file a medical malpractice lawsuit. This notification, called the Notice of Intent, is a formal document that must be sent to the defendant through verifiable means such as certified mail, tracked USPS mail, a commercial delivery service, or via legal process servers.
The notice of intent to sue must include a copy of the written expert opinion and a HIPAA-compliant medical release form authorizing the release of the claimant’s medical records to the potential defendants. It ensures that the defendants have access to all relevant information to evaluate the claim and potentially negotiate a settlement.
Once the notice is sent, a series of legal requirements and deadlines are triggered. You must follow the notice requirements precisely, as failure to do so can result in the dismissal of your claim. When you hire a skilled Florida medical malpractice lawyer, they will take care of the entire process, ensuring all requirements are met to preserve the success of your case.
Presumption of Delivery
Florida’s medical malpractice statute contains a presumption of delivery clause, which states that the notice of intent is presumed to have been received if it was sent to the defendant’s address listed with relevant state agencies. This presumption helps streamline the pre-suit process, ensuring that the notification process is not unnecessarily delayed by disputes over whether a notice was received.
If the defendant (person or party the lawsuit is brought against) disputes receiving the notice, a court hearing may be required to determine whether the notice was properly sent and received. However, this presumption generally works in favor of the plaintiff by providing a safeguard against claims of non-receipt.
Mandatory Pre-Suit Investigation
On receiving the Notice of Intent, the defendant has 90 days to conduct a pre-suit investigation to determine whether they bear liability for the injury. During this period, both parties can engage in informal discovery, which includes exchanging medical records, conducting interviews, and discussing the facts of the case without the formality of litigation.
This phase is essential because it allows both sides to assess the case’s merits before formally filing a lawsuit. It also opens the door for settlement discussions, which can help avoid the costs and time associated with a trial.
Response to the Claimant
After the 90-day pre-suit investigation period, the defendant must formally respond to the claimant. The defendant has three options in their response:
- Reject the Claim: The defendant may reject the claim and provide an expert affidavit refuting the allegations of medical negligence.
- Make a Settlement Offer: If the defendant believes that settlement is in their best interest, they may offer a financial settlement to the injured party to resolve the case before litigation.
- Offer to Admit Liability and Proceed to Arbitration: In some cases, the defendant may admit liability and offer to proceed directly to arbitration for the purposes of determining the amount of damages owed. Arbitration can be a faster and less expensive alternative to going to court.
If the defendant rejects the claim, the injured party can proceed with filing a formal lawsuit. However, the litigation phase may be avoided altogether if the case is resolved during the pre-suit process through settlement or arbitration.
Additional Considerations When Filing a Medical Malpractice Claim in Florida
Statute of Limitations
One of the most important aspects to be aware of when filing a medical malpractice lawsuit in Florida is the statute of limitations. In Florida, the statute of limitations for medical malpractice claims is generally two years from the date the patient knew or should have known about the injury. However, there are exceptions to this rule, such as cases involving minors or situations where the healthcare provider engaged in fraud or concealment to hide the malpractice.
If you miss the statute of limitations, you lose your right to file a claim, no matter how strong your case may be. It is essential to consult with an experienced medical malpractice attorney early to ensure that your claim is filed within the appropriate time frame.
Caps on Non-Economic Damages
Florida law limits the amount of non-economic damages (such as pain and suffering) awarded in medical malpractice cases. While economic damages, such as medical bills and lost income, are not capped, non-economic damages are usually limited to $500,000 per claimant. If the defendant is a hospital or other large medical institution, the cap may be higher, but these limits still play a significant role in determining the amount of compensation available in medical malpractice cases.
Medical Malpractice Insurance Requirements
In Florida, healthcare providers are not required to carry medical malpractice insurance, although many do. It can complicate the recovery process for plaintiffs, particularly if the provider is uninsured. In cases where the healthcare provider lacks insurance, plaintiffs may face difficulties collecting a judgment, even if they win their case in court.
Additionally, Florida law allows certain healthcare providers to self-insure by posting a financial responsibility bond. If you are pursuing a claim against an uninsured or self-insured provider, it’s essential to understand the specific challenges and options available for recovering compensation.
The Role of Mediation in Medical Malpractice Cases
Mediation is a common step in resolving medical malpractice claims in Florida. It is a form of alternative dispute resolution (ADR) in which both parties meet with a neutral mediator to attempt to resolve the case without going to trial. Mediation is often less costly and time-consuming than a trial, allowing both sides more control over the outcome. This process aims to facilitate communication and negotiation between the parties involved and potentially reach a settlement without litigation.
During pre-suit mediation, the claimant, defendant, and their legal representation meet with a neutral mediator experienced in medical malpractice cases. The mediator’s role is to facilitate discussions, encourage open communication, and assist the parties in finding a mutually acceptable resolution.
Mediation allows the claimant to present their case and discuss the impact of the medical negligence on their life. It also allows the defendants to respond and potentially offer a settlement. The mediator helps guide the conversation, ensuring both sides can express their views and concerns.
While the outcome of pre-suit mediation is not binding, meaning that either party can still pursue litigation if a settlement is not reached, it can be a cost-effective and efficient way to resolve a medical malpractice claim. Having an experienced personal injury attorney by your side during this process is imperative to protect your interests and ensure that your rights are advocated for.
Mediation is not mandatory in all cases; however, many courts require it as part of the pre-trial process in medical malpractice lawsuits. Even if the court does not require mediation, it may still be a valuable option to consider, especially if both parties are open to negotiating a settlement.
Contact a Seasoned Florida Medical Malpractice Lawyer Today
Filing a medical malpractice lawsuit in Florida requires a thorough understanding of the state’s complex legal procedures. The pre-suit screening process, mandatory expert affidavits, and strict deadlines make medical malpractice cases particularly challenging. Adhering to Florida Statute §766.106 and ensuring compliance with all requirements is essential for proceeding with a lawsuit.
Gregg M. Hollander, West Palm Beach Medical Malpractice Attorney
For anyone considering a medical malpractice claim in Florida, consulting with an experienced personal injury attorney is in their best interest. An attorney can guide you through the process, help gather expert testimony, and ensure your case is filed within the required time limits. Whether seeking compensation for medical expenses, lost income, or pain and suffering, having legal representation can significantly increase your chances of a successful outcome.
If you or a loved one has been a victim of medical malpractice in Florida, it’s important to seek the help of a seasoned West Palm Beach personal injury lawyer. The laws surrounding medical malpractice in Florida can be challenging to handle. That’s where a skilled attorney can make all the difference. Call for a consultation today.