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Medical Malpractice Cases Follow Different Rules

By Brent C. Miller, Esquire

No matter what one's political affiliation, I suspect we all have an opinion regarding whether there are too many or not enough cases filed in our courts asserting negligence on the part of hospitals, doctors, nurses or a variety of nursing homes and centers that care for us and our elderly family and friends. To be sure, it is important that our elected officials in Tallahassee (and on a greater scope, in Washington, D.C.) be aware to protect the rights of us when we are most vulnerable and need the protection the most.

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The Florida legislature meets every year to pass and repeal laws that govern us all. Laws controlling automobile, motorcycle and homeowners cases are generally governed by the same set of "procedural" laws. For instance, if you are involved in an automobile or motorcycle accident, or slipped and fell and were injured on someone else's property, you may file a lawsuit the following day.

However, if you feel that either you or a family member has been injured due to malpractice by a doctor or a hospital, there are certain procedures you must follow prior to filing a medical malpractice claim.

Filing a medical malpractice claim in Florida

First, if you believe you or your family member has been a victim of medical malpractice, it is necessary to hire a medical expert to review the case and sign an affidavit that indicates there is a reasonable basis for malpractice. Most medical experts will require a complete set of medical records upon which to base such opinion. This includes all past medical records leading up to the act of malpractice, and all records reflecting any treatment received due to and after the negligent act.

Upon the receipt of such an affidavit from a medical expert, such affidavit must be forwarded to all potential defendants. The affidavit is accompanied by a document called a Notice of Intent to Sue. After sending all such defendants a copy of the Notice of Intent to Sue, the injured patient or his/her family may not proceed for 90 days. The patient must provide medical records and any other documents requested by any of the defendants and answer any written questions that any of the defendants send to the patient. This 90-day period is referred to as the Pre-Suit Screening period.

At or before the end of the 90-day pre-suit period, the prospective defendant or the prospective defendant's insurer must provide the claimant with a response either admitting negligence or denying the claim. Usually, the claim is denied and litigation follows.

As you can see, the requirements in medical malpractice cases significantly differ from that of an automobile, motorcycle or other personal injury type case. Also, law firms handling medical malpractice cases incur substantial costs as it is usually necessary to retain multiple medical experts to testify on the patient's behalf. Obviously, doctors who testify for patients charge hefty fees for their time. In view of the "hoops" one must jump through prior to filing a medical malpractice claim and the expense of such a case, it is important that you consult a qualified medical malpractice attorney before pursuing a medical malpractice case.

At our firm, we have litigated numerous medical malpractice cases and have proceeded to trial when necessary. Contact us if you require consultation or advice regarding this type of case.

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