Brought to you by Robert N. Pelier, P.A. and Aymee C. Gonzalez, P. A

Under Florida law, in order to file a lawsuit against a physician, hospital or other medical professional or medical service provider, a Plaintiff satisfy strict pre-litigation requirements. A case of medical malpractice, or medical negligence as it is termed under the law, requires months of investigation, preparation and legal effort before the doors to a courthouse are even opened to the injured party. It is crucial to hire an attorney with experience in this field of law, someone who can help you navigate the pre-litigation process and get your case off to the best start possible.

Chapter 766 of the Florida Statutes specifies the pre-litigation or presuit process that is mandatory and must be fully completed before a lawsuit may be filed. This process delays the filing of legal action by at least 90 days. Here is what you can expect:

1. Plaintiff’s pre-suit investigation: The Plaintiff, the person wanting to bring the claim, must first conduct a full investigation into the medical services that they claim were negligent. To do this, the Plaintiff will need to retain the services of a doctor who is actively licensed, practices in the same specialty as the Defendant, and otherwise satisfies all of the requirements of §766.102. This doctor must review all of the medical records and then give his or her opinion as whether the subject medical care was negligent, in the form of a written and sworn report. Without this written and sworn report the Plaintiff cannot even begin the pre-suit process in a meaningful way. 

• Notice of Intent: Next, the Plaintiff must prepare a Notice of Intent to be sent to any prospective defendants. This letter must contain very specific information sufficient to identify the patient, doctor, and the specific incident, and also must include certain additional documents such as the written and sworn medical opinion referenced above, all medical records etc. The full and complete requirements for the Notice of Intent can be found in Chapter 766 of the Florida Statutes.

• Pre-suit Discovery: After the Notice of Intent is sent and received by the Defendants the parties can begin an informal discovery process. This process in many ways can mirror the formal discovery conducted after a lawsuit is filed, and can include the taking of formal statements, the exchange of written questions, and documents requests. The failure to reasonably cooperate in this process can have negative effects on your ability to initiate a lawsuit, should you get to that point. 

1. Defendant’s duties under the law: Next, the potential Defendant(s) must perform their own investigation of the facts and circumstances of the alleged negligence. Just as with the Plaintiff, there are specific requirements that potential Defendants must meet in order to satisfy their legal duty under the law, including to retain a doctor, unrelated to the case, to issue a sworn written opinion as to the Defendant doctor’s actions, specifically whether he or she believes there was negligence. 

• Possible outcomes: There are 3 possible outcomes to this process: (1) the Defendant(s) can deny the claim outright, which would then allow the Plaintiff to file a lawsuit, (2) they can settle the case then and there, and (3) they can accept liability only and proceed to either arbitration or litigation only as to the issue of compensation or damages. 

Although this lengthy and involved presuit process is intended to streamline medical negligence cases and encourage settlement or resolution of meritorious cases outside of litigation, in reality, most cases end up proceeding to litigation anyway after this 90-day presuit process is completed. If you or someone you know believes that they have suffered from medical negligence it is crucial that they contact an experienced attorney as soon as possible to begin investigating the claim immediately. If a claim is not brought within 2 years of the date of occurrence, it is generally too late to file a lawsuit and the claim is forever barred. An experienced and skillful attorney can make this complicated process much easier and ensure that your case is not lost because of procedural flaws or technicalities. 

At the Law Office of Robert N. Pelier, P.A. we take pride in serving our local South Florida community and providing experienced, and knowledgeable legal services. Medical negligence cases can be very emotional, complex and time consuming; we strive to offer our clients the best possible outcome and to be in their corner every step of the way.  We have decades of experience civil cases of all kinds, including breach of contract, medical malpractice, insurance disputes, business disputes, personal injury, crime victim advocacy and much more. Our experience helping and advocating for our clients in South Florida can help you.