Presuit Requirements

In 1988, the Florida legislature passed significant changes to medical malpractice law. Among other things, the law requires a detailed (and burdensome) process that must be followed before suit can be filed.

Investigation and Initial Opinion

Under section 766.203(2), Florida Statutes, anyone seeking to pursue a medical malpractice case must first “conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) Such negligence resulted in injury to the claimant.”

The person seeking to pursue the case must obtain “a verified written medical expert opinion from a medical expert . . . .” to “corroborate reasonable grounds to support the claim of medical negligence.” Id.

Notice

Next, under 766.106(2)(a), “a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence by at least one of [four different] verifiable means.” Those methods are: “1. United States Postal Service certified mail, return receipt requested; 2. United States Postal Service mail with a tracking number; 3. An interstate commercial mail carrier or delivery service; or 4. Any person authorized by law to serve process.” Id.

The “[n]otice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence.” § 766.106(2)(c), Fla. Stat. It must also include “all known health care providers during the 2-year period before the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed [Authorization for Release of Protected Health Information] form provided in s. 766.1065.” Id.

Defendant’s Review

Under section 766.106(3)(a), “suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant.” During that time, “the prospective defendant or the prospective defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the prospective defendant.” Id. As part of the defendant’s review, “[i]f the insurer requires, a claimant must appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required.” § 766.106(3)(a), Fla. Stat. “Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses.” Id.

Informal Discovery

Once a prospective defendant receives a notice of claim, “the parties shall make discoverable information available without formal discovery.” § 766.106(6), Fla. Stat. See also 766.205(1), Fla. Stat. (“Upon the completion of presuit investigation . . . , which . . . has resulted in the mailing of a notice of intent to initiate litigation . . . , corroborated by medical expert opinion . . . , each party shall provide to the other party reasonable access to information within its possession or control in order to facilitate evaluation of the claim.”) And under 766.205(2), “access [to the information] shall be provided without formal discovery, pursuant to s. 766.106, and failure to so provide shall be grounds for dismissal of any applicable claim or defense ultimately asserted.” Here, as in other places in medical malpractice law, section 766.205(3), specifies that the “[f]ailure of any party to comply with this section shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the party seeking production.”

Informal discovery includes unsworn statements, the production of documents or things, and physical and mental examinations. Id. Parties can also request answers to written questions and they can take unsworn statements of the claimant’s treating health care providers. Id. “Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.” Id.

Section 766.204(1), Florida Statutes, specifies that “[c]opies of any medical record relevant to any litigation of a medical negligence claim or defense shall be provided to a claimant or a defendant, or to the attorney thereof, at a reasonable charge within 10 business days of a request for copies.” However, “an independent special hospital district with taxing authority which owns two or more hospitals shall have 20 days.” Id. A provider cannot refuse copies of records by asserting that “they are not yet completed or that a medical bill is still owing.” § 766.204(1), Fla. Stat.

Under 766.204(2), a provider’s failure to provide copies, or failure to charge reasonably, will “constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party.”

“When a hospital receives a request to produce medical records in a presuit investigation, it may verify the legal status of the person requesting the records to determine whether they are a claimant . . . , and also take those steps necessary to comply with the requirements of HIPAA and state laws limiting disclosure of confidential medical records.” Shands Jacksonville Med. Ctr., Inc. v. Pusha, 254 So. 3d 1076, 1085 (Fla. 1st DCA 2018). And under 766.204(3), “[a] hospital shall not be held liable for any civil damages as a result of complying with this section.”

Section 766.106(6)(b)(5) used to allow for prospective defendants and their attorneys to interview the claimant’s treating physicians without notice to a claimant or their lawyer. But in 2017, the Florida Supreme Court struck that part of the statute. Weaver v. Myers, 229 So. 3d 1118, 1141 (Fla. 2017) (“Second, we strike the last sentence from section 766.106(6)(b)5., Florida Statutes (2013), which contains the constitutionally infirm language: ‘If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.’ § 766.106(6)(b) 5., Fla. Stat.”).

Under section 766.106(5), any “statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party.” See also 766.205(4) (“No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.”) Further, “[a]ll participants, including, but not limited to, hospitals and other medical facilities, and the officers, directors, trustees, employees, and agents thereof, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit investigation process.” § 766.205(4), Fla. Stat. This “immunity from civil liability includes immunity for any acts by a medical facility in connection with providing medical records pursuant to s. 766.204(1) regardless of whether the medical facility is or is not a defendant.” Id.

And importantly (if this wasn’t clear enough already as stated above), a party’s failure to cooperate “during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.” § 766.106(7), Fla. Stat.

Defendant’s Response

After all this, “[a]t or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response.” § 766.106(3)(b), Fla. Stat. That could include: “1. Rejecting the claim; 2. Making a settlement offer; or 3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.” Id.

“Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.” § 766.106(3)(c), Fla. Stat.

If the attorney for the claimant receives a response, they have thirty days to advise the claimant in writing of the following:

1. The exact nature of the response under paragraph (b).

2. The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.

3. The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.

4. An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.

5. An estimation of the costs and attorney’s fees of proceeding through trial.

§ 766.106(3)(d), Fla. Stat.

If you or anyone you know needs a lawyer to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!