Because of a perceived litigation crisis affecting the healthcare industry, Florida, among several other states, has placed restrictions on the filing and prosecution of lawsuits for medical malpractice. Florida’s medical malpractice reform began in 1985 by requiring potential plaintiffs to provide a “notice of intent” to each prospective defendant prior to filing a lawsuit. In 1988, Florida added a “pre-suit investigation” requirement, which included provisions permitting potential parties to conduct “informal discovery” before a lawsuit was filed. Since then, Florida’s “pre-suit requirements” have been modified several times, with the most recent revisions coming as part of a comprehensive medical malpractice reform in 2003.
Before an injured patient can bring a lawsuit against a negligent health care provider, Florida law requires an informal “pre-suit investigation.” Pursuant to section 766.203, Florida Statutes, before filing a medical malpractice lawsuit, a plaintiff “shall conduct an investigation to ascertain that there are reasonable grounds to believe” that the defendant was negligent, and the defendant’s negligence led to the plaintiff’s injury. This requires that the plaintiff hire a qualified medical expert to review the records and determine whether there are reasonable grounds to believe a claim exists. The plaintiff must then submit an affidavit consisting of a verified written medical expert opinion to corroborate the reasonable grounds to support the claim of medical negligence.
Upon the service of the notice of intent to initiate litigation for medical negligence and the medical expert’s affidavit, a 90-day pre-suit investigation commences. During the 90-day pre-suit investigative period, the parties exchange documents, medical and financial records, written questions, and take unsworn statements similar to a deposition. During this time, the potential defendant is also required to complete an investigation to determine the validity of the claim. At the close of the 90-day pre-suit period, the potential defendant can either make a settlement offer, reject the claim, or admit fault and make an offer to arbitrate on the issue of damages alone. The stated intent of the pre-suit investigation process is to provide a mechanism for the expedient resolution of medical malpractice claims, allowing the parties to avoid expensive and lengthy litigation.
If the potential defendant believes there is no merit to the claim and he or she obtains the affidavit of a qualified medical expert saying there is no merit, he or she can deny the claim at the end of the pre-suit investigation. At this point, the plaintiff must proceed with filing a lawsuit. If the potential defendant finds that there is still no merit to the claim, he or she has the option of making a settlement offer to conclude pre-suit.
Finally, the potential defendant can conclude pre-suit by admitting fault and requesting arbitration. In an arbitration, if the plaintiff accepts the request, the potential defendant will be entitled to a cap or limit on the damages that can be recovered of $250,000 per claimant for pain and suffering, but may still recover the full amount of past and future medical expenses. Generally, arbitration benefits the plaintiff since the only issue to be resolved is the amount of damages awarded to the plaintiff. Thus, arbitration serves as an option for defendants with potentially weak defenses or poses a strategy to limit the exposure they face for damages. If the plaintiff rejects the request for arbitration, the plaintiff will then have to file suit and the cap on pain and suffering would be $350,000 per claimant. Further, liability and causation must be proven by the plaintiff.
During pre-suit, the plaintiff also can request arbitration. If accepted by the potential defendant, the limitations on damages mentioned above still apply. However, if rejected, the plaintiff would be entitled to attorney’s fees of up to 25% if the plaintiff files and lawsuit and prevails at trial.
The pre-suit screening process is complicated minefield and there are many issues to consider including whether to request arbitration or whether to accept arbitration if requested.
If you or a loved one was seriously harmed by a doctor’s negligence in Florida, or if you have any questions regarding a potential medical malpractice claim, Miller Trial Law can assist you. Please call us today at (305) 697-8312 for a free, no-risk consultation. We look forward to serving you!