Proper Procedure is Necessary to Make Medical Malpractice Claims

Proper Procedure is Necessary to Make Medical Malpractice ClaimsIf you listen to the media, you may think that suing a doctor for malpractice is as easy as filing a lawsuit and collecting your money. The public seems to have a perception that these are easy cases, where victims are awarded millions of dollars for dubious claims (or even that too much money is awarded even for legitimate claims by overly sympathetic jurors). In fact, nothing could be further from the truth.

What the media does not report and what most people do not tell you, is that someone who is injured by a doctor who commits malpractice cannot simply file a medical malpractice lawsuit, the way someone can if they were injured in a car accident or product liability case.

Florida Has Complex Pre-Suit Procedure

In order to ensure that malpractice cases have merit and some basis in fact, the Florida Legislature has enacted a very complex procedure that must be followed by malpractice victims before they even get to file a lawsuit. This pre-suit procedure may result in a settlement before suit is ever filed, but also may result in the realization that there is no viable claim to be filed.

A victim seeking to sue for malpractice must first obtain an opinion from a medical expert that reasonable grounds exist to pursue the malpractice claim. The opinion is not to prove that the defendant was absolutely negligent, but rather to demonstrate that a reasonable investigation into the claim was made by the victim’s attorney.

The expert issuing the opinion must be in the same field as the potential defendant, and must have credentials sufficient to qualify them as an expert in trial, even if that expert will not ever actually testify.

Any physician can provide an opinion as to the negligence of a nurse or a nurse practitioner. Only Emergency Room experts can provide opinions on Emergency Room care, even if the care involved a specific type of treatment. Thus, if an ER doctor provided orthopedic treatment, the victim’s expert must still be an ER doctor—not an orthopedist.

The Notice of Intent

If there is the basis for a claim, the victim must then send a notice of intent (NOI) along with the expert’s opinion to the potential defendant(s). The NOI must be comprehensive, including a list of the victim’s prior treating doctors, and copies of all records the victim’s expert reviewed. The NOI also may contain interrogatories (written questions), which the Defendant must respond to.

Once the NOI is received suit may not be filed for 90 days, to allow the parties to explore settlement options.

The failure of a party to cooperate in good faith with this presuit investigation can lead to a court prohibiting a party’s claim or defense if and when the case is filed. In fact, a court can dismiss claims or defenses, if the parties do not exchange information, or answer each other’s informal questions during the NOI period.

The investigation may also involve an unsworn oral examination, which is a deposition that is not under oath. In fact the NOI period also allows Defendants to speak directly with a victim’s own treating doctors, and call them to appear at an unsworn statement. Victims are legally required to allow their doctors to speak about their treatment. Thus, clients should be aware that the confidentiality that normally surrounds a patient and a doctor, may not exist when a malpractice claim is filed.

Responding at the End of the NOI Period

Before the end of the NOI period, a Defendant can respond in one of four ways. The Defendant can expressly reject the claim. To do so, it must submit an opinion of its own expert explaining why the claim was rejected.

The Defendant can make a settlement offer, but there is no minimum, and the offer can always be withdrawn.

The Defendant can also admit liability but go to arbitration on damages. In arbitration, a panel of three people (usually attorneys or retired judges) will hear the evidence and determine what the damages are. The arbitration process thus takes the damages decision out of the hands of a jury.

The victim can ultimately reject the arbitrator’s award, but if it does so, damages are limited to out of pocket expenses, and $350,000 for non-economic damages, such as pain, suffering, or mental anguish.

The Defendant also can just do nothing which will be interpreted as rejecting the claim. The victim can then sue, and may also be able to allege in the suit that the Defendant did not properly engage in pre-suit investigation, thus requiring the striking of defenses.

Whatever option the defendant chooses, the choice ends the NOI period, and the victim is then—finally—free to file a lawsuit for malpractice.

Procedures Must Be Followed

It is important to remember that many malpractice cases involve multiple defendants—a doctor, a hospital, a medical group, an anesthesiologist, etc. In such case, the presuit procedures must be followed as to each.

Courts enforce these procedures very strictly. Malpractices cases can and do get dismissed regularly, for the failure to engage in the pre-suit procedures. In fact, the defense is a popular one for culpable defendants who are seeking to avoid liability for their actions.

As you can see, filing for malpractice is no easy endeavor, and the idea that anybody can file a malpractice case anytime is just false. They require work and investigation, and the procedure is designed to make sure only the strongest cases survive.

If you think you have been injured as a result of medical malpractice, make sure your attorneys understand how to prove the claim and conduct a full investigation. Contact the medical malpractice attorneys of Brill & Rinaldi, for a free consultation about your case.