Florida Medical Malpractice Pre-Suit Requirements: What Patients Need to Know

Filing a medical malpractice lawsuit in Florida is different from filing many other types of personal injury claims. Before an injured patient can proceed with a lawsuit, Florida law requires a specific pre-suit investigation and notification process.

These legal/procedural requirements are designed to determine whether there are reasonable grounds for a medical malpractice claim before the parties enter litigation. For patients, however, they also make it important to begin investigating a potential case as soon as possible as putting together the necessary information and documentation to meet these requirements takes time.

At Liberman Cabrera Thompson & Reitman, our Fort Lauderdale attorneys look at the medical treatment first, but we also pay close attention to the procedural requirements as established under Florida law. A strong medical malpractice case can be dismissed if the proper steps are not completed within the required deadlines.

About the Florida Medical Malpractice Pre-Suit Process

Before a medical negligence complaint can be filed, Florida law requires the claimant to investigate whether there are reasonable grounds to believe that a healthcare provider was negligent and that the negligence caused an injury.

Essentially, this means a medical malpractice attorney cannot simply review a patient’s description of what happened and immediately file a lawsuit. The attorney must investigate the underlying medical care and develop appropriate medical support for the claim which requires getting an affidavit under oath from an expert in the same specialty as the prospective defendant which establishes not only that the prospective defendant breached the applicable standard of care, but also that said breach caused and/or contributed to cause the damages complained of..

That investigation includes:

• Obtaining hospital and physician records;
• Reviewing imaging and laboratory results;
• Creating a timeline of treatment;
• Identifying any and all potentially responsible healthcare providers;
• Reviewing follow-up treatment;
• Evaluating the patient’s injuries and damages;
• Consulting with an appropriate medical expert in each field at issue; and
• Obtaining an affidavit executed by a qualified expert in each speciality as the potential defendant(s) health care provider.

PRO TIP: Medical records frequently contain thousands of pages. When we evaluate a case, we are not simply looking for one obvious mistake. We compare physician notes, nursing records, orders, test results, medications, and timestamps to determine where the patient’s care may have broken down. After decades of experience reviewing complex medical records, our team has a strong understanding of medical terms and best practices. In addition, we have a team of experts to call on to guide them through the process.

A Medical Expert Must Review the Potential Claim

One of the most important parts of Florida’s pre-suit process is the medical expert requirement.

Before issuing a notice of intent to pursue medical negligence litigation, the claimant must conduct an investigation establishing reasonable grounds for the claim. Those grounds must be supported by a verified written medical expert opinion from an expert in the same speciality as each potential defendant..

The expert is essentially helping answer two central questions:

1. Did the healthcare provider’s treatment fall below the appropriate standard of care?
2. Did that failure cause or contribute to the patient’s injury?

Florida also has specific qualifications governing who may provide expert testimony depending on the type and specialty of the healthcare provider involved.

PRO TIP: Finding an expert is not simply a matter of finding another doctor. The expert must be appropriately qualified for the particular defendant and medical issues involved. We look carefully at the provider’s specialty and the type of care at issue before determining which expert should evaluate the case. Some of our experts we have worked with for years and trust to make sound opinions on the most important matters.

Sending the Notice of Intent to Initiate Medical Negligence Litigation

After the preliminary investigation has been completed, the next step is generally sending a formal notice of intent to each prospective defendant.

Florida law requires this notice before the medical malpractice complaint is filed. The notice must be provided through one of the verifiable methods permitted under the statute.

Depending on the circumstances, prospective defendants may include:

• Physicians
• Surgeons
• Nurses
• Medical practices
• Hospitals
• Healthcare facilities
• Other medical providers involved in the patient’s treatment

Determining who should receive notice is an important part of the investigation.

For example, what initially appears to be a surgical error may also involve nursing care, anesthesia, post-operative monitoring, hospital staffing, or another provider.

PRO TIP: One of the questions we ask early is, “Who had the opportunity to prevent this injury?” Following the patient’s entire chain of care can uncover responsible parties who may not be obvious from the beginning.

Medical Record Authorizations Are Part of the Pre-Suit Process

Florida law also requires the pre-suit notice to be accompanied by an authorization allowing the release of protected health information potentially relevant to the claim. If the required authorization is not included, the statute provides that the pre-suit notice is void.

This allows the prospective defendants and their representatives to investigate the patient’s medical history and the allegations being made.

Because medical history can become an important part of the defense, attorneys must consider which prior conditions are relevant to the injuries claimed in the case.

What to Expect During the 90-Day Pre-Suit Period

After receiving notice, the prospective defendant generally has 90 days to investigate the claim before the lawsuit proceeds. Florida law establishes this pre-suit screening period as part of the medical negligence process.

During this period, both sides may investigate the allegations and exchange information through the forms of informal discovery permitted under Florida law.

The prospective defendant may ultimately:

• Reject the claim
• Make a settlement offer
• Make an offer to arbitrate damages while admitting liability

A rejection does not mean that the case is over. If the attorneys and medical experts continue to believe there is a valid claim, litigation proceeds after the required pre-suit process has been completed.

Florida Medical Malpractice Deadlines Still Matter

Florida generally requires medical malpractice actions to be commenced within two years from the incident or from when the incident was discovered, or should have been discovered through due diligence. Florida also generally has a four-year statute of repose, with certain exceptions.

The pre-suit process can affect the calculation of applicable deadlines, but patients should never assume that starting the pre-suit process means there is unlimited time to pursue a case.

Investigating the claim, obtaining records, securing expert review, and satisfying Florida’s procedural requirements all take time.

That is why speaking with an attorney early can be important.

Why Florida’s Pre-Suit Requirements Make Early Investigation Important

A patient may initially believe that something went wrong without knowing exactly why.

That is common.

You may know that your condition unexpectedly deteriorated, that another physician told you something should have been discovered sooner, or that you required emergency treatment shortly after being discharged.

The purpose of the legal investigation is to determine what occurred.

As medical malpractice attorneys, we look for the point where the care changed course. We want to know what the providers knew, what they should have known, and what they did in response.

Contact a Fort Lauderdale Medical Malpractice Attorney Today to Get Answers to Your Questions

At Liberman Cabrera Thompson & Reitman, our attorneys investigate the medical care, work with appropriate medical experts, identify potentially responsible parties, and handle the pre-suit process required under Florida law.

If you believe that you or a loved one may have been injured because of medical negligence, contact Liberman Cabrera Thompson & Reitman for a free case review.