Judicial interpretations of Presuit in Florida: how to avoid the pitfalls of bringing or defending a claim for medical malpractice.

• Author: Blostein, Jeffrey L.

Much of the litigation concerning presuit in medical malpractice cases has focused on the requirement that a claimant conduct a presuit examination and obtain expert corroboration

In order to successfully bring or defend a claim for medical malpractice in Florida, it is imperative not only to follow the guidelines set out in the Florida Comprehensive Medical Malpractice Reform Act,[1] but also to follow the requirements spelled out in the volumes of judicial interpretations of the act. Since the act's inception, there have been two major amendments resulting in large amounts of litigation regarding presuit and its many requirements. The purpose of this column is not only to give a step-by-step analysis of the modern requirements of the act, but also to advise potential litigants of the pitfalls of bringing or defending a claim for medical malpractice in Florida as documented in recent case law.

Presuit Investigation by a Potential Claimant

One of the primary thrusts of Florida's statutory medical malpractice scheme is to "weed out" cases that are not, even prima facie, supported by some reliable indication of their merits.[2] For this reason, the statutes provide that a potential claimant must conduct an investigation to determine whether there are reasonable grounds to believe that a potential defendant was negligent in the care and treatment of the claimant and whether such negligence resulted in an injury to the claimant.[3]

Part and parcel with the reasonable investigation requirement is a requirement that a potential claimant obtain expert corroboration of reasonable grounds to support a claim of medical negligence.[4] It is in this area that much litigation concerning presuit has focused. In order to favor access to courts, Florida courts have been lenient in their interpretations of the expert corroboration requirement. The courts have held that the statutes requiring that a claimant provide a verified written medical expert opinion in medical malpractice cases do not actually require notarization of the medical opinion.[5] Importantly, the courts have held that the expert corroboration does not have to set forth in protracted detail the plaintiff's theory of the case.[6] The expert opinion does not have to delineate how the alleged defendants were negligent.[7] Instead, the corroboration merely assures the defendants, and the court, that a medical expert has determined that there is justification for the plaintiff's claim and that it is not frivolous.[8]

Notice of Intent

Another aspect of presuit that has generated a large amount of litigation over recent years is the notice of intent requirement. After completing the presuit investigation, a potential claimant must send each prospective defendant a notice of intent to initiate litigation for medical malpractice.[9] The purpose of the notice of intent is to give a defendant notice of the incident in order to allow investigation of the matter and to promote presuit settlement of the claim.[10] What constitutes proper notice has been left to the discretion of the courts. The Second District Court of Appeal has held that a patient's letter to his dentist's insurance carrier did not constitute a proper notice of intent for the patient's medical malpractice action against that dentist.[11] The letter, among other things, requested negotiations outside of the statutory requirements.[12] The Third District has held that a claimant's notification of a dentist's brother of the claimant's initiation of a medical malpractice claim against the dentist was not proper notice under the statutes.[13]

The Florida Supreme Court has recently addressed the notice of intent issue in deciding whether notice to one party in an action could constitute notice to another party in the same action. In Kukral v. Mekras, M.D., 679 So. 2d 278 (Fla. 1996), the plaintiffs served notice of intent to initiate medical malpractice litigation on a physician, but not on the physician's employer. The employer contended that any claims against it should be dismissed because it was not individually served with a notice of intent and the notice of intent sent to the physician did not indicate that it was a prospective defendant in the action. The Supreme Court held that the notice to the physician operated as notice to the employer because the employer had a legal relationship to the physician. Furthermore, the notice did not have to include any prospective defendants, only defendants that were already sent notices.

According to the act, the expert corroboration of reasonable grounds to initiate medical negligence litigation should be provided to the defendant at the time the notice of intent to initiate litigation is mailed.[14] Florida courts, however, have taken a liberal interpretation of this plain statutory language. It is now well recognized in Florida that the failure to provide a corroborating expert medical opinion along with the notice of intent may be cured as long as the opinion is provided before the applicable statute of limitations expires.[15]

Attention also must be paid to the...