Medical Malpractice Presuit Requirements in Florida

by Bonner Law | Aug 25, 2020 | Legal Questions/Issues

Florida is one of several states that has placed restrictions on the filing and prosecution of lawsuits for Medical Malpractice because of a perceived litigation crisis affecting the health care industry.  Medical Malpractice reform in Florida began in 1985 by requiring potential plaintiffs in Medical Malpractice cases to provide a Notice of Intent to each prospective defendant before filing a lawsuit.  In 1988, Florida added a “Presuit Investigation” requirement, which included provisions permitting potential parties to conduct “informal discovery” before a complaint was filed.  Florida’s “Presuit” requirements have been modified several times since then, with the most recent revisions coming as part of a comprehensive medical malpractice reform under Governor Jeb Bush in 2003.

Before a patient injured by the negligence of a Health Care Provider can bring a lawsuit against that Health Care Provider, Florida law requires that there be an informal “Presuit Investigation.”   Pursuant to section 766.203, Florida Statutes, before filing a Medical Malpractice lawsuit, a Plaintiff “shall conduct an investigation to ascertain that there are reasonable grounds to believe” that the Defendant was negligent, and the Defendant’s negligence led to the Plaintiff’s injury. This requires that the Plaintiff hire a qualified medical expert to review the records and determine there are reasonable grounds to believe a claim exists.  The Plaintiff must then submit a verified written medical expert opinion in the form of an affidavit to corroborate the reasonable grounds to support the claim of Medical Negligence.

Upon the service of the Notice of Intent to Initiate Litigation for Medical Negligence along with a verified written medical expert opinion, a 90-day presuit investigation begins. During the 90-day presuit investigative period, the parties exchange documents, medical and financial records, written questions, and take unsworn statements which are similar to a deposition.  During this time, the potential Defendant is also required to complete an investigation to determine if there is validity to the claim.

At the end of the 90-day presuit period, the potential Defendant can either make a settlement offer, reject the claim, or make an Offer to Arbitrate on the issue of damages alone.  The stated intent of the Presuit Investigation process is to provide a mechanism for the expedient resolution of Medical Malpractice claims thus allowing the parties to avoid the expensive and lengthy litigation of the Medical Malpractice lawsuit.

If the potential Defendant believes there is no merit to the claim and they are able to obtain the affidavit of a qualified medical expert saying there is no merit, they can deny the claim at the end of the Presuit Investigation.  At this point the Plaintiff must proceed with filing a lawsuit.  If the potential Defendant finds that there is merit to the claim, they have the option of making a settlement offer to conclude presuit.

Finally, the potential Defendant can conclude Presuit by requesting Arbitration. They may opt for this because they know they cannot defend the care they gave. Or they may do this as a strategy to limit the exposure they face for damages.  This is because in an Arbitration, if the Plaintiff accepts the request, the potential Defendant will be entitled to a cap or limit on the damages that can be recovered of $250,000 per claimant for pain and suffering along with other limitations on what can be recovered.  The benefit to the Plaintiff is that the only issue to be resolved in an Arbitration is the amount of damages to be awarded.  The potential Defendant cannot dispute liability or causation.    If the Plaintiff rejects the request for Arbitration, the Plaintiff will then have to file suit and the cap would be $350,000 per claimant. Further, liability and causation must be proven by the plaintiff.

During Presuit, the Plaintiff also can request Arbitration.  If accepted by the potential Defendant, the limitations on damages mentioned above still apply. However, if rejected, the Plaintiff would be entitled to attorney’s fees of up to 25% if the Plaintiff prevails at trial.

The Presuit Screening process is complicated and there are many issues to consider including whether to request Arbitration or whether to accept Arbitration if requested.  If you have any questions regarding a potential medical malpractice claim, and the Presuit Investigation process, contact Bonner Law at 305-676-8800 for a free consultation. We have over 30 years of experience representing patients and healthcare providers in medical malpractice litigation.