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Medical Malpractice Litigation

Once the presuit process is complete with the matter not settling or resolving within arbitration, so long as the statute of limitations has not run, a person making a claim can file suit. In medical malpractice litigation, Florida’s Evidence Code and Florida’s Rules of Civil Procedure apply but there are several other statutes that apply.


Good Faith Certificate


Under 766.104(1), “[n]o action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” The “complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant.” Id.


In this context, “good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence.” Id. “If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney's fees and taxable costs against claimant's counsel, and shall submit the matter to The Florida Bar for disciplinary review of the attorney.” Id.


Section 766.104(3), Florida Statutes, clarifies that:


For purposes of conducting the investigation required by this section, and notwithstanding any other provision of law to the contrary, subsequent to the death of a person and prior to the administration of such person's estate, copies of all medical reports and records, including bills, films, and other records relating to the care and treatment of such person that are in the possession of a health care practitioner as defined in s. 456.001 shall be made available, upon request, to the spouse, parent, child who has reached majority, guardian pursuant to chapter 744, surrogate or proxy pursuant to chapter 765, or attorney in fact of the deceased pursuant to chapter 709. A health care practitioner complying in good faith with the provisions of this subsection shall not be held liable for civil damages attributable to the disclosure of such records or be subject to any disciplinary action based on such disclosure.


Mediation and Settlement Conference


Under 766.108(1), Florida Statutes, “[w]ithin 120 days after the suit is filed, unless such period is extended by mutual agreement of all parties, all parties shall attend in-person mandatory mediation in accordance with s. 44.102 if binding arbitration under s.766.207 has not been agreed to by the parties.”


And under 766.108(2)(a), “the court shall require a settlement conference at least 3 weeks before the date set for trial.” “Attorneys who will conduct the trial, parties, and persons with authority to settle shall attend the settlement conference held before the court unless excused by the court for good cause.” § 766.108(2)(b), Fla. Stat.


Contesting Presuit Process


Within litigation, if a party wants to contest whether another party complied with the medical malpractice presuit requirements, that party can do so under section 766.206, Florida Statutes. “After the completion of presuit investigation by the parties pursuant to s. 766.203 and any discovery pursuant to s. 766.106, any party may file a motion in the circuit court requesting the court to determine whether the opposing party's claim or denial rests on a reasonable basis.” § 766.206(1), Fla. Stat.


As to a claim made:


If the court finds that the notice of intent to initiate litigation mailed by the claimant does not comply with the reasonable investigation requirements of ss. 766.201-766.212, including a review of the claim and a verified written medical expert opinion by an expert witness as defined in s. 766.202, or that the authorization accompanying the notice of intent required under s. 766.1065 is not completed in good faith by the claimant, the court shall dismiss the claim, and the person who mailed such notice of intent, whether the claimant or the claimant's attorney, is personally liable for all attorney's fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney's fees and costs of the defendant or the defendant's insurer.


§ 766.206(2), Fla. Stat.


And as to a denial:


If the court finds that the response mailed by a defendant rejecting the claim is not in compliance with the reasonable investigation requirements of ss. 766.201-766.212, including a review of the claim and a verified written medical expert opinion by an expert witness as defined in s. 766.202, the court shall strike the defendant's pleading. The person who mailed such response, whether the defendant, the defendant's insurer, or the defendant's attorney, shall be personally liable for all attorney's fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney's fees and costs of the claimant.


§ 766.206(3), Fla. Stat.


In addition to fees and costs, an attorney may have even greater consequences for failing to comply with the presuit process.


If the court finds that an attorney for the claimant mailed notice of intent to initiate litigation without reasonable investigation, or filed a medical negligence claim without first mailing such notice of intent which complies with the reasonable investigation requirements, or if the court finds that an attorney for a defendant mailed a response rejecting the claim without reasonable investigation, the court shall submit its finding in the matter to The Florida Bar for disciplinary review of the attorney. Any attorney so reported three or more times within a 5-year period shall be reported to a circuit grievance committee acting under the jurisdiction of the Supreme Court. If such committee finds probable cause to believe that an attorney has violated this section, such committee shall forward to the Supreme Court a copy of its finding.


§ 766.206(4), Fla. Stat.


Doctors who are not properly qualified, or who improperly corroborate a claim or denial, also face consequences. “If the court finds that the corroborating written medical expert opinion . . . lacked reasonable investigation or that the medical expert submitting the opinion did not meet the expert witness qualifications . . . , the court shall report the medical expert . . . [to the state’s disciplinary authority for that expert].” § 766.206(5)(a), Fla. Stat. Further, “[t]he court shall refuse to consider the testimony or opinion attached to any notice of intent or to any response rejecting a claim of an expert who has been disqualified three times pursuant to this section.” § 766.206(5)(b), Fla. Stat.


Contributory and Comparative Fault


In most negligence actions, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” § 768.81(6), Fla. Stat. Thankfully, that limitation “does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.” Id.


When there are multiple defendants, section 768.81(3) states that “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” (Joint and several liability would make each defendant responsible to pay the damages of all defendants.)


Section 766.112 further specifies that liability for “teaching hospitals” and “a board of trustees of a state university” are only based on the percentage of fault, not on joint and several liability.


If you or anyone you know needs an attorney 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!

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