Florida First District Court of Appeals Reviews Medical Malpractice Pre-suit Requirements in Wrongful Death Action
As discussed in prior blog posts, certain negligence actions require the victim, the victim’s family, or the victim’s estate to follow certain guidelines specific to the type of action pursued. Under Florida law, medical malpractice actions not only have a different statute of limitations but also have additional pre-suit requirements regarding notice of intent to sue and pre-suit investigation. Pre-suit investigation is allowed to help defendants determine whether there was negligence in the care or treatment of the injured person, and whether this negligence resulted in an injury. (See Chapter 766 of the Florida Statutes.) This investigation must be corroborated by a medical expert in a verified written opinion that is subject to discovery.
In Morris v. Muniz (1D14-3987), the defendant doctors and hospitals moved to dismiss a wrongful death complaint due to the estate’s failure to satisfy the state’s medical malpractice pre-suit requirements, specifically a failure to provide reasonable access to information during the pre-suit investigation. The trial court agreed with the defendants that there was a failure to provide reasonable information regarding the qualifications of the estate’s medical expert.
The appellate court, in its review, pointed out that the dismissal of a medical malpractice action must only occur in extreme situations as an extraordinary sanction. Florida law requires a plaintiff to provide reasonable access to information to the other party, and it allows trial courts to dismiss an action if the injured person or the estate fails to comply. In this action, the plaintiff repeatedly ignored requests for pre-suit investigation regarding the expert’s qualifications. The plaintiff refused to comply with the requirement even after the investigation period was extended for 90 extra days, the court imposed sanctions, and multiple letters were sent expressing concern about the medical expert’s qualifications. The trial court found that the actions of the personal representative were intended to deprive the defendants of all opportunities to meaningfully participate in discovery of the negligence claims.
The appellate court agreed and affirmed the ruling of the trial court, pointing to a record full of evidence of the plaintiff’s failure to cooperate. While the lower court’s ruling was affirmed, one appellate court judge provided a written dissent, which focused more on whether or not the plaintiff’s expert met the statutory requirements. The dissenting judge pointed out that the intent behind the medical malpractice requirements was to prevent frivolous lawsuits. The judge felt the affidavit of the plaintiff’s medical expert established her qualifications on its face. The judge did not feel the appellate court reviewed the evidence in the light most favorable to the plaintiff, as required by law. The dissenting judge sided with the plaintiff, determining that the defendants did not have a right to further investigate the expert’s qualifications when they were available on the face of the affidavit provided.
Florida medical malpractice lawsuits can become complicated and tricky to navigate. The experienced Florida wrongful death attorneys at Donaldson & Weston are here to help you through these complex procedures and maximize the damages you deserve. Call today for a free, confidential consultation at 772-266-5555 or 561-299-3999.
More Blog Posts:
Florida Appellate Court Reinstates Injured Automobile Passenger Award of Over $93,000, South Florida Injury Lawyer Blog, February 17, 2016
Florida’s First District Court of Appeal Allows Child’s Wrongful Death Suit to Continue, South Florida Injury Lawyer Blog, January 18, 2016