Understanding the Pre-Suit Notice and Screening Process in Medical Malpractice Cases
After getting over the shock and immediate medical attention that frequently coincides with an injury due to medical negligence, victims often seek the advice of a medical malpractice attorney about the possibility of filing a legal claim. Wanting to obtain quick justice for the wrong experienced is a natural expectation, but the reality of malpractice claims makes a fast resolution unlikely. Before a complaint can be filed with a court, Florida law requires the parties go through a pre-suit procedure that allows the defendant to assess the plaintiff’s claim. While this process is firmly in favor of malpractice defendants, and many cases settle out of court before a trial even begins, it is a prerequisite to these cases that cannot be avoided. It does add time to the overall length of the case, but this fact should not deter an injured victim from pursuing legal action. Rather, having this information about the process of a medical malpractice case in advance demystifies the legal process, making it a less overwhelming experience and allowing for a more productive relationship with one’s attorney. A discussion of the requirements included with the pre-suit process will follow below.
Before an injured plaintiff is permitted to file a medical malpractice complaint, he/she must first give notice to the prospective defendants about his/her intent to initiate a malpractice claim, the nature of the alleged injury, and a list of healthcare providers the plaintiff saw in the two years preceding the alleged act of medical negligence, as well as all providers who saw the plaintiff for treatment of the injury at issue. Additionally, the plaintiff must consent to a release of all relevant medical records, and failure to do so voids the notice and ends the claim completely.
Once this notice is provided, a 90 day waiting period starts during which plaintiffs are prohibited from initiating a formal lawsuit, so the defendants have an opportunity to conduct an investigation of the claim to determine potential liability. As part of this investigation, the injured plaintiff may be required to submit to an examination by defendants’ doctors or to appear before a panel of medical experts. Plaintiffs must comply with such requests or face dismissal of the claim.
Defendant Screening and Offer Period
As part of this process, defendants are entitled to engage an informal fact-finding period, called discovery, during which both parties are required to:
- turn over all requested documents;
- provide unsworn statements;
- respond to written questions; and
- as noted above, submit to a physical/mental examination, if requested of the plaintiff.
Further, the defendant has the right to take a statement from the plaintiff’s treating physician(s), though anything produced as a result of this pre-suit investigation is not admissible in a later civil malpractice suit.
Before or at the end of this 90-day period, the defendant must inform the plaintiff of his/her decision to:
- reject the claim;
- make a settlement offer; or
- make an offer to arbitrate on the issue of damages, in which case, liability is admitted.
If no response is received by the end of the 90-day period, the claim is considered rejected, and the plaintiff is free to move forward with legal action. If, on the other hand, a response is sent, the plaintiff’s attorney has 30 days to inform the plaintiff about the defendant’s decision, including the legal consequences of accepting/rejecting an offer of settlement and the likelihood of success at trial.
Contact a Florida Medical Malpractice Attorney
Being injured by the person who is supposed to heal you is a devastating betrayal. If you have been so injured, contact a medical malpractice attorney at Miami’s Pita Weber & Del Prado to learn how they can help you hold the doctor accountable. Compensation can never return what was taken from you, but it can make life a little easier as you recover/adjust to the consequences of a doctor’s negligent act. Contact the office today for a free consultation.