Medical Malpractice Pre-Suit Investigations
Anytime a person is suffering from a major illness or debilitating condition, the family is focused on providing emotional and physical support in hopes of aiding the recovery process. Any anxiety that would naturally flow from this situation is greatly heightened if the ill person is forced to stay in the hospital for an extended period of time. Unless someone has medical training, most people rely on the expertise of doctors and hospital staff to provide the appropriate care, and indeed, families are often understandably distracted and rarely look too hard at the medical treatment offered. If the family later consults a lawyer about possible medical malpractice, a clock is already ticking on the amount of time a legal claim is valid. While it is not expected the average person would have the knowledge to fully identify negligent medical treatment, it is important, if there is any question about the adequacy of the care received, to speak with a lawyer at an early date to avoid missing this deadline. The family of a man who died had their malpractice claim dismissed because they did not initiate the legal process in time. Florida law has special rules for medical malpractice claims, and requires anyone planning to sue for medical malpractice to notify the defendant of this intention so there is an opportunity to investigate the claim. This step must be followed in order to gain the right to file a lawsuit.
Duty to Investigate
The first thing the law requires is the party alleging malpractice must conduct an investigation to determine if there is sufficient evidence to bring a medical malpractice case. This investigation is performed by the party’s lawyer, and the lawyer must certify to the court he/she made a good faith effort to verify the existence of an actionable claim for negligent medical care. Typically, the lawyer will retain the services of a medical expert to issue an opinion stating there is evidence of medical negligence. This opinion will never be seen by the opposing party, and the time limit for filing a malpractice claim is paused for 90 days while this investigation is under way. Any healthcare provider who has medical records or reports for the person who was injured or died due to possible medical negligence must release them for purposes of this investigation.
Once the pre-suit investigation is complete, the party claiming negligence must notify any prospective defendants of his/her plan to initiate a lawsuit. Defendants and insurers get 90 days to conduct an investigation into the legitimacy of the negligence claims, and no lawsuits can be filed during this time. By the end of the 90 days, the defendants must present the party claiming negligence with a response that rejects the claims, offers to settle the case, or requests arbitration to determine damages. If no response is received within 90 days, it is treated as if the defendant rejected the claims. If the person claiming negligence is represented by an lawyer, the lawyer must provide the following information within 30 days of receiving the defendant’s response to the notice of intent to sue:
- how the defendants respond;
- any offers of settlement, admission of liability, or offers to arbitrate damages;
- the legal and financial consequence of rejecting the defendant’s offer;
- the likelihood of success at trial; and
- the projected costs and lawyer fees to continue through trial.
Speak to a Medical Malpractice Lawyer
If you question the medical treatment you or a family member received from a doctor or other medical personnel, it is crucial to speak to an lawyer as close to a questionable incident as possible. You do not want to worry about missing the deadline to file a lawsuit, and the legal process for medical malpractice cases is lengthy, so the sooner it starts, the better for you and your family. The Miami law firm of Pita Weber & Del Prado represents clients in a wide variety of medical malpractice matters and can assist you with evaluating your case. Contact us to schedule a free consultation.