Initiating a Medical Malpractice Lawsuit
Most Americans hold an expectation that they will have access to good medical care when they need to visit the doctor. By and large, doctors try to provide capable medical care, but it is no secret that physicians are overworked and understaffed due to a shortage of doctors and large student loan debts most carry when they graduate medical school. This situation raises the possibility that a patient will experience negligent medical care that causes an injury, which leads them to file a medical malpractice suit. People want to trust their doctors, but advocating for appropriate medical care is a reality that many individuals face when interacting with the medical community. This self-advocacy is especially important when negligence is suspected due to the short timeline to file a claim (just two years), and the extensive and time-consuming investigation that must precede all lawsuits. A recent decision by the Florida Supreme Court seems to indicate the court is ready to bring clarification to the complex legal issue of where to draw the line between medical malpractice and regular negligence. This distinction is important because in medical malpractice cases notice of intent to sue must be provided to all potential defendants, and if that notice is not provided, the case cannot proceed. Given how essential the pre-suit notice and investigation is to the success of a medical malpractice case, a discussion of how this process works will follow below.
Florida’s laws on medical malpractice tend to be skewed in favor of doctors and malpractice insurers. This tendency appears in the beginning stage of a malpractice claim in the form of a required pre-suit investigation by the claimant and his/her lawyer as the existence of a legal claim. The investigation must be conducted in good faith, and involves obtaining copies of the claimant’s medical records and securing supporting medical reports from other doctors. These reports must state the treatment received was negligent and an injury occurred as a result before the claim proceeds to the next step – notice.
Notice and Response
Prior to filing a lawsuit in court, anyone claiming medical malpractice must notify all potential defendant healthcare providers about the intent to initiate litigation, and give them a period of time to respond to the allegations. The notice must also include a list of all medical providers who saw or evaluated the claimant following the injury, a list of all treating healthcare providers for the two year period preceding the negligent treatment, and medical records used by the claimant’s medical expert to draft an opinion about the standard of treatment.
Defendants have 90 days to investigate whether they hold liability for the claimant’s injuries, and are permitted to request information from the claimant in order to assess the claims. If a party fails to cooperate in this process, it is grounds for dismissal of the case. Some of things defendants can ask for include:
- unsworn statements from the parties;
- documents or other items within the party’s control;
- written questions; and
- physical and mental examinations of the claimant.
At the end of the 90-day period, defendants must provide the claimant with a written response that rejects the claim, offers to settle the claim, or offers to arbitrate over the amount of damages owed. If defendants fail to send a response at the end of 90 days, the claims are treated as rejected. If a claimant wants to proceed after the conclusion of the pre-suit investigation period, he/she is now permitted to file a lawsuit.
Seek Legal Advice
If you suffered an injury due to negligent treatment by a doctor, you need a medical malpractice lawyer to hold the responsible physician accountable. These cases are highly complex, and require an experienced legal team, like the one at the Miami law firm of Pita Weber & Del Prado, to take it through to the end. Do not wait to receive an lawyer’s assessment of your case, and risk loss of evidence or a time bar to filing a claim. Contact the law firm today for a free consultation.