Florida law mandates a presuit evaluation process for all claims alleging medical malpractice. This requirement only applies to the negligent provision of medical care; it does not apply to ordinary negligence that happens to occur in a medical setting.
Notice of Intent
1. Plaintiff required to complete a pre-suit investigation
The presuit process begins with an investigation by the prospective plaintiff in an effort to determine whether medical negligence likely occurred and was the cause of injury to the prospective plaintiff.
2. Corroborating expert affidavit
The prospective plaintiff must retain a medical expert to corroborate that reasonable grounds exist to support a claim of medical negligence against each prospective defendant. Section 766.203 requires that the medical expert provide a verified written opinion to this effect.
The expert retained by the prospective plaintiff need not have the same specialty as the prospective defendant. Rather, a similar specialty is sufficient. Florida instituted a requirement that an expert testifying about the standard of care for a physician or dentist be licensed as such in Florida or obtain an expert witness certificate if out of state.
3. The Notice of Intent
Florida Statute section 766.106 requires that a prospective Plaintiff serve the prospective defendant with a notice of intent to initiate medical malpractice litigation before a complaint for medical malpractice can be filed with the court. The notice of intent must be accompanied by the corroborating affidavit from the prospective Plaintiff’s expert. Section 766.106 requires that the notice include the following materials in order to be considered complete:
- A list of all known health care providers seen by the patient for the injuries complained of following the alleged negligence;
- A list of all known health care providers who treated the claimant in the two year period prior to the alleged negligence;
- Copies of all the medical records relied upon by the potential Plaintiff’s expert.
Failure of a plaintiff to comply with the legal requirements of Florida’s presuit statutes can serve as a basis to dismiss a subsequently filed lawsuit.
The first and most important task of presuit discovery is to meet with your defense counsel. This establishes trust and fosters a personal connection. You should offer an explanation of the care and treatment provided to the potential plaintiff in order to better assess potential strengths and weaknesses in the case.
Your defense counsel may pursue discovery from other sources during presuit. Section 766.106 provides that all parties must make discoverable information available without formal discovery during the presuit period. The failure to do so can form the basis to dismiss the subsequent lawsuit or strike the defenses asserted in response to the lawsuit if it prejudices the other party’s ability to investigate the claim.
Parties are entitled to serve document requests, written questions, and seek physical or mental examinations much as they would be able to do after a lawsuit has been filed.
Although section 766.106 does not provide a mechanism for taking sworn testimony, unsworn statements of parties or healthcare providers may be taken. However, conversations between a potential defendant or defense counsel and a treating physician has been found by the Florida Supreme Court to be a violation of a patient’s right to privacy. Thus, any verbal information obtained by a potential defendant from a non-party healthcare provider must be in the form of an unsworn statement where the potential plaintiff and counsel are invited to be present.
It is important to note that information obtained in presuit discovery cannot be used in subsequent litigation. This means that written discovery, unsworn statements and even the expert affidavits generated in the presuit process cannot be used by the opposing party once the matter goes into litigation.
Presuit Investigation by Prospective Defendant
A prospective defendant or the prospective defendant’s insurer is required to evaluate the potential liability of the prospective defendant within 90 days after service of the notice of intent. The relatively short timeframe means that you need to recognize a notice of intent and to immediately notify your insurance company or, if not insured, retain counsel upon receipt of a notice of intent.
As soon as defense counsel is notified that a notice of intent has been served, counsel should immediately begin attempting to locate a suitable expert to review the facts alleged in the notice and to hopefully opine that the prospective defendant did not commit malpractice.
One expert who practices in the same or similar specialty as the potential defendant is generally all that is required for expert retention in the presuit period. However, there are situations where it is wise to consider retention of multiple experts. This is particularly true where a different specialist is needed to opine on the causation aspect of the alleged malpractice.
The statutory requirement to conduct an investigation mandates that insurers have a procedure to review the allegations. The procedure must include one or more of the following activities:
- Internal review by a claims adjuster;
- Review by a panel comprised of an experienced attorney, a health care provider of the same or similar specialty as the prospective defendant, and a claims adjuster;
- Review by a medical review committee
- Any other procedure which fairly and promptly evaluates the pending claim.
Section 766.106, Fla. Stat. Although this burden is imposed on the insurer or self-insurer, the investigation is typically conducted primarily by counsel for the prospective defendant.
After an investigation has been performed, the potential defendant must provide a written response to the notice of intent. The response must do one of the following:
- Deny the claim;
- Offer to settle the claim; or
- Admit liability and offer to submit to arbitration of the claimed damages.
A rejection of the claim must be accompanied by an affidavit of an expert who will attest that the defendant did not commit malpractice that resulted in injury to the potential plaintiff. The expert affidavit submitted in support of a denial should specifically describe the expert’s qualifications to render an opinion, and the medical records and other information considered by the expert in reaching his or her conclusion.
If the potential plaintiff is represented by an attorney, the attorney is required to advise the potential plaintiff of the response to the notice of intent within 30 days of receipt of the response.
Offer to Arbitrate
During the presuit stage, any party may offer to engage in voluntary binding arbitration pursuant to Florida Statute section 766.207. Under this statutory provision, a potential defendant admits liability and the arbitration process are used to determine damages only. The potential defendant who agrees to the arbitration process receives a benefit of a cap of $250,000 on noneconomic damages. Punitive damages will not be considered by the arbitration panel. Economic damages, including wage loss and loss of earning capacity, are limited to 80 percent of the net wage loss and loss of earning capacity. Additionally, future economic losses awarded must be payable in periodic payments, offset by future collateral-source payments. The potential defendant is required to pay reasonable attorneys’ fees and costs awarded by the arbitration panel, which is subject to a maximum of 15 percent of the award.
If a claimant rejects a potential defendant’s offer to arbitrate, the noneconomic damages awarded at trial will be reduced to $350,000 per incident. Additionally, any jury award for lost wages and loss of earning capacity will be reduced to 80 percent of such damages, reduced to present value.
A Notice of Intent can have far reaching implications on a physician’s reputation, medical license and practice. Medical malpractice requires a great deal of knowledge, skill and experience with issues surrounding the standard of care, legal duties and ethics. David Doyle and Julie Tyk have the experience necessary to help medical professionals defeat accusations that threaten their profession, integrity and livelihood. If you need a Florida law firm to prepare a strong defense and navigate the legal system contact the Health Care Practice Group at Pearson Bitman.
By Julie Tyk, JD
Julie A. Tyk, JD, is a Partner with Pearson Bitman, LLP. Julie concentrates her practice in medical practice defense litigation, insurance defense litigation and health care law. She has represented physicians, hospitals, ambulatory surgical centers, nurses and other health care providers across the state of Florida. She may be contacted by calling (407) 951-8523; firstname.lastname@example.org.