State law establishes the pre-filing requirements in a Florida medical malpractice case. If you attempt to file a lawsuit without completing these requirements, you will not be able to take legal action or recover damages.
What Is the First Step in the Pre-Filing Process?
Under F.S. §766.104, the first step in the process is the pre-suit investigation. The goal of the pre-suit investigation is to eliminate frivolous lawsuits by requiring proof that each claim has reasonable evidence to back it up.
The results of the pre-suit investigation must show grounds for the belief that medical malpractice occurred. We often prove this for our clients by obtaining a written opinion of an expert stating that there is evidence of medical negligence.
During the pre-suit investigation period, the statute of limitations is automatically paused, or “tolled,” for 90 days. This is so the claimant can conduct a thorough investigation without feeling time constraints. No court order is needed for the tolling of the statute of limitations to occur.
What Happens After the Pre-Suit Investigation Is Complete?
Once the claimant’s pre-suit investigation is completed, they must notify each prospective defendant by certified mail, return receipt requested, of their intent to initiate litigation for medical malpractice. They must serve this notice at least 90 days before filing a suit.
The notice must contain the following information, if available:
- A list of all known healthcare providers who have treated claimant for their injury since the alleged act of negligence;
- All known healthcare providers who treated claimant during the two-year period before the incident;
- Copies of all medical records the medical expert had access to; and
- A health information release form.
The notice of intent triggers a 90-day period for prospective defendants to conduct their own pre-suit investigation. The claimant cannot file a suit during this time. The notice also tolls the statute of limitations during this period.
What Happens After the Defendant Receives the Notice of Intent?
After receiving the claimant’s notice of intent, the prospective defendant must conduct their own pre-suit investigation to determine if negligence occurred and whether it resulted in injury to the defendant. During this phase, the claimant and prospective defendants exchange written questions, requests for documents and other relevant evidence, and take unsworn statements.
During the pre-suit investigation, the defendant must take one or more of the following actions:
- Undergo an internal review with a claims adjuster;
- Create a panel with a medical malpractice attorney, a healthcare provider with similar experience as the at-fault doctor, and a claims adjuster; or
- Agree to work with a state or local professional society of healthcare providers that maintain a medical review committee.
The claimant and the defendant must conduct their investigations in good faith.
When Will I Receive a Response From the Defendant?
Before the end of the defendant’s 90-day pre-suit investigation, they must respond. They could:
- Reject the claim;
- Make a settlement offer; or
- Make an offer to arbitrate.
If the defendant offers to arbitrate, they will admit responsibility for the malpractice and negotiate for damages.
If the at-fault party rejects your claim, they must include a written opinion from a medical expert that corroborates the lack of reasonable grounds for a lawsuit. If this occurs in your case, you can still file a suit at any time.
What Other Options Do I Have During This Process?
In Florida, claimants have a few additional options during the pre-filing process.
You Can Undergo Voluntary Binding Arbitration
You can allow an arbitration panel to determine the damages in your case. This option is only available if the defendant admits responsibility for the malpractice, and only the amount of damages is at issue.
Either party can request voluntary binding arbitration within 90 days of the claimant’s notice of intent to initiate litigation. If the other side accepts the offer, they must comply with the decision of the arbitration panel.
You Can Allow the Court to Conduct a Pre-Suit Investigation
After both pre-suit investigations are finished, either party can ask the Court to determine if the claim is reasonable. If the Court determines that either the claim or denial is baseless, it will dismiss the claim or strike the defendant’s pleading.
Whoever made the baseless claim is responsible for all attorney’s fees and costs associated with the pre-filing process. If the defendant denies your claim and the Court strikes their denial, they must pay for your legal expenses.
How Can I Set up a Free Case Evaluation With a Medical Malpractice Attorney?
The Medical Malpractice Help team can help you understand the legal requirements to file a medical malpractice lawsuit in Florida. We can take you through each step of the pre-filing process and represent you during settlement negotiations or a trial.
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