Medical malpractice cases are often complex. These cases can require extensive treatment records and detailed testimony provided by medical experts. Further complicating these cases are additional procedural requirements involved in medical malpractice lawsuits in Florida. It is not enough to simply draft and file a complaint against a health care provider.
The West Palm Beach medical malpractice lawyers at Gordon & Partners can review the important legal aspects of filing a medical malpractice lawsuit. We can then guide you during every stage of the process.
Time Limits on Filing a Lawsuit and Its Exceptions
In Florida, a medical malpractice plaintiff must file a lawsuit within two years. This clock begins when the injury is discovered or when the plaintiff should have reasonably discovered the injury, but at the latest, within four years from when the malpractice occurred. If this time limit passes, the defendant can move to dismiss the case.
One exception to this time limit is if the health care provider fraudulently conceals the malpractice by intentionally deceiving the patient so that he or she will not discover the malpractice. In this situation, the time limit to file the lawsuit is two years from the date when the injury was discovered or seven years from when the medical malpractice occurred.
The two-year time limit does not apply in cases where the malpractice victim was a minor if the case started before the child’s eighth birthday.
Notice of Claim Requirement
Florida law requires that a medical malpractice plaintiff notify each defendant of his or her intent to sue before filing the lawsuit. This notice must include the following information:
- A list of all health care providers who treated the plaintiff for the condition that involves the claim of medical malpractice
- A list of all health care providers who the plaintiff saw two years before the alleged act of medical malpractice
- Copies of all medical records the plaintiff relied on that were used when the medical expert signed the affidavit of merit
This notice must be sent via certified mail, return receipt requested at least 90 days before filing the lawsuit.
Pre-Suit Investigation and Affidavit Requirement
After the notice of claim is filed and during the 90-day waiting period, the named defendants must conduct a pre-suit investigation. After the 90-day period ends, each defendant must take one of the following actions:
- Reject the claim
- Make a settlement offer
- Ask to arbitrate the case
During this investigation period, the statute of limitations is paused so that the health care providers and plaintiff can resolve the case outside of the courtroom. If the health care provider indicates that it did not want to settle before the expiration of the 90 days, the plaintiff has 60 days or the remainder of the statute of limitations to file the lawsuit, whichever is longer.
Before filing the notice of intent to file a lawsuit, the plaintiff must secure an affidavit of an expert that says the plaintiff has reasonable grounds to believe that medical malpractice occurred and the health care provider was negligent. A plaintiff can file for an investigation period in order to find a medical expert to investigate the case to get an extra 90 days. However, a person cannot extend the statute of limitations through this measure if the statute of limitations has already expired.
Authorization for Release of Protected Health Information
The medical malpractice plaintiff must also provide each health care provider with an authorization for release of protected health information so that they can obtain his or her medical records and investigate the medical malpractice claims.
Speak With a Lawyer to Get Started
If you were harmed by a negligent health care provider, it is important that you have the assistance of a skilled medical malpractice lawyer who can adhere to the strict procedural guidelines regarding medical malpractice lawsuits in Florida. At Gordon & Partners, we are familiar with the various filing requirements and can help ensure that you meet them.
Contact us at 1 (855) 722-2552 to schedule a free case evaluation.