Presuit Considerations in Medical Malpractice Cases

If you suspect that you or a loved one has been the victim of medical malpractice, you may decide to pursue a medical malpractice claim against the responsible parties.

However, before filing a malpractice lawsuit in the State of Florida, the person bringing the claim must participate in a formal investigatory process. Failure to do so will almost certainly result in the dismissal of a lawsuit.

If the time period within which to complete the process has already expired, it could result in a bar to refiling if pre-suit is not done properly in the first place. It is very important to comply with the pre-suit requirements.

What is the pre-suit process in a malpractice personal injury claim?

This process is called pre-suit, and it’s a little bit like a miniature version of a lawsuit that must be completed prior to getting access to the actual court system with a medical malpractice case.

Florida statute Chapter 766 governs this process and provides for a 90-day period during which the parties can exchange discovery and otherwise investigate the merits of the claim.

The purpose of the pre-suit process is to number one, discourage frivolous claims that don’t have merit, and number two, encourage early settlement of meritorious claims.

Notice of Intent

Pre-suit begins when a person looking to bring a claim sends a document to the anticipated target called a Notice of Intent. A Notice of Intent must state that the party looking to bring a claim has already conducted a good faith investigation into the merits of the claim.

Semi-formal service is required. So, the Notice of Intent must be sent via registered and certified mail.

The investigation must be corroborated, such that the notice of intent must include an affidavit from an appropriate expert witness stating that the expert has reviewed the relevant materials, and based on that review, as well as the expert’s education, training, and experience, he or she believes there’s a good faith basis for pursuing a claim based on negligence against the target or targets.

Expert Affidavit Required

First of all, the expert selected to sign or author the affidavit must be qualified to offer the specific opinion being offered. This means you must find an expert from the appropriate specialty. For example, an emergency room doctor may not be qualified to offer an opinion with respect to say whether a general surgeon was negligent in performing a gallbladder surgery.

Sometimes it’s necessary or at least helpful to retain multiple experts prior to launching a Notice of Intent, to ensure your client will be able to meet their burden of proof or negligence, in other words, what was done wrong or incorrectly. But also causation, how that specific action led to harm.

For instance, perhaps the issue took place in the emergency room, the ER doctor maybe discharged a patient who had a need for an emergency spinal surgery. But you might ultimately need a neurological or neurosurgical expert to offer an opinion regarding what type and how much damage was caused by the delay.

The expert must be qualified, but also certified to act as an expert witness by the Florida Department of Health. Obtaining the required certification is fairly simple, but it does require jumping through some hoops and paying a registration fee to the Department of Health.

After A Notice of Intent

What comes next after a Notice of Intent is served on a prospective target to a medical malpractice lawsuit? Once the respondent receives a Notice of Intent, they’re obligated to do several things. First, it starts the ticking of a 90-day clock within which they must respond to the Notice of Intent.

A response can come in one of three ways. A respondent can offer to settle the case. They can deny the Notice of Intent, and they must corroborate the denial with an expert opinion of their own, or they can offer to proceed to a binding arbitration.

Informal Discovery

First, they must respond to informal discovery. A discovery is simply a way the parties ask each other for information in a lawsuit. Even though this is prior to a lawsuit being filed, discovery does take place much the same way. Written questions are exchanged, and lawyers can take oral statements from parties and third parties. These sessions are called depositions in litigation. In pre-suit, they’re called unsworn statements, because they’re not under oath.

Now, the discovery process can be useful in pre-suit to gather documents a hospital or other entity might not otherwise agree or want to turn over. However, nothing exchanged in pre-suit can be used for any purpose during a litigation which is to come. It enjoys that protection.

It does create a little bit of a disincentive to take oral statements or unsworn statements from the other side because that can help to prepare your opponent for the types of questions or areas of concern you have about the current issue.

In other words, you may be helping to prepare your opponent for their ultimate deposition, which is under oath and on the record. As stated, nothing mentioned the first time around in an unsworn statement can be used during the actual litigation.

Another school of thought is that locking a witness in early to a particular sequence of events or locking in a particular witness’s memory about what happened during a tragic or unfortunate outcome may be useful in ensuring that that witness when they are called to give a deposition, testifies consistently with that early recollection that gets locked in at an early time.

What is next?

Once the 90-day period has expired and your prospective defendant has responded to the Notice of Intent, the potential litigant has 60 additional days to get a lawsuit filed or the amount of time left under the statute of limitations.

In a medical malpractice case, you have two years from the date of the incident or the date by which a reasonable claimant should have reason to suspect medical malpractice occurred to begin the pre-suit process. The pre-suit process tolls the statute of limitations until it is closed, and then it provides for an additional 60 days within which to get the lawsuit filed.

The attorneys at Michles & Booth are equipped to offer a free consultation to explain how these questions will ultimately be answered based on the specific facts of your scenario.

Please give us a call today to schedule your free consultation – (800) 848-6168.


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