What Does It Take to File a Successful Medical Malpractice Claim in Florida?

Medical malpractice is alarmingly common, and mistakes in all types of medical settings can have drastic consequences for patients and their families. As a result, many patients and families find themselves needing to take legal action. Strict requirements apply to medical malpractice claims under Florida law; so, for those who need to take legal action, it is critical to work with an experienced Florida medical malpractice attorney throughout the process.

Here is an overview of what it takes to file a successful medical malpractice claim in Florida:

Conducting a Preliminary Medical Malpractice Claim Assessment

The first step in filing a successful medical malpractice claim is conducting a preliminary claim assessment. While medical malpractice can take many forms, not all medical mistakes (or suspected medical mistakes) warrant legal action.

When you hire a Florida medical malpractice attorney to represent you, your attorney will ask lots of questions, review your (or your loved one’s) medical records, and perhaps consult with trusted medical experts who can provide insights regarding the applicable standard of care. The purpose of taking these steps is not to second-guess you, but rather to make an informed decision about whether it makes sense to proceed with the next steps in the process.

Obtaining an Expert Affidavit

If it appears that you have grounds to file a medical malpractice claim, one of the next key steps will be to obtain an expert affidavit. This is a requirement under Florida law. An expert affidavit is a written explanation of why the diagnosis or treatment you or your loved one received deviated from the applicable standard of care.

Your attorney will choose an appropriate expert to prepare the affidavit based on the nature of the medical malpractice involved. Choosing a well-qualified expert is important, as the expert’s reputation within the medical community and the substance of the affidavit can both be key factors in early settlement negotiations.

Issuing a Presuit Notice

After obtaining an expert affidavit, the next step is to issue a presuit notice. This is also a requirement under Florida law. As stated in Section 766.106 of the Florida Statutes:

“After completion of [a] presuit investigation . . . and before filing a complaint for medical negligence, a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence . . . .

“Notice 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, 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 [required] authorization form . . . .”

Failure to comply with any of these requirements can lead to unnecessary delays and complications, so it is important to focus on the details at this stage of the process. An experienced Florida medical malpractice attorney will be familiar with these requirements and will be able to take all of the necessary steps to assert your legal rights effectively.  

Conducting Informal Discovery

After issuing a presuit notice in compliance with Section 766.106 of the Florida Statutes, a plaintiff in a medical malpractice case has the right to take informal discovery. This includes obtaining oral or written statements, treatment records, and other forms of relevant documentation from the patient’s healthcare provider.

During this part of the process, the healthcare provider must also conduct an internal investigation. Healthcare providers and their insurance companies have an obligation to respond to medical malpractice claims in good faith, and if they fail to do so, this may preclude them from asserting any defenses later in the process.

Undergoing Physical or Mental Examinations  

Defendants in medical malpractice cases also have the right to take informal discovery. This includes requiring the patient to undergo a physical or mental examination, as applicable. The defendant has the right to choose the healthcare provider that conducts this examination as well as its time and place, provided that the defendant “give[s] reasonable notice in writing.”

In most cases, the defendant may require the patient to undergo only a single examination. However, if a single examination is “impractical” for any reason, one or more additional examinations may be required.  

Negotiating with the Healthcare Provider’s Insurance Company

Once the informal discovery process is complete, the parties will typically engage in settlement negotiations. If the healthcare provider has medical malpractice insurance (which is almost always the case), settlement negotiations will be handled through the healthcare provider’s insurance company.

During settlement negotiations, your attorney will use the available evidence to try to convince the insurance company to accept liability. If the insurance company accepts liability, the focus of the negotiations will shift to determining how much it will pay. With that said, there are no guarantees at any stage of the process, and, if the insurance company is unwilling to make a satisfactory settlement offer, you may need to take your claim to court.

Going to Court, if Necessary

If you do not receive a satisfactory settlement offer, you may need to go to court in order to recover the financial compensation you deserve. This is a process all on its own. If it makes sense to start preparing your case for trial, your attorney will do what is necessary to get ready for trial while continuing to pursue a fair settlement. Medical malpractice claims can (and do) settle on the eve of trial, and settling during trial is a possibility as well.

Discuss Your Next Steps with a Florida Medical Malpractice Attorney at Searcy Denney

Do you have questions about filing a medical malpractice claim in Florida? If so, our attorneys can explain everything you need to know—and, if you have a claim, we can get to work immediately. To schedule a free consultation with an experienced Florida medical malpractice attorney at Searcy Denney, call 800-780-8607 or tell us about your case online today.