Judicial Interpretations of Presuit: How to Avoid Pitfalls of Bringing or Defending a Claim for Medi
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 mechanics of serving the notice of intent. The Florida Rules of Civil Procedure provide that the notice of intent shall be served by certified mail, return receipt requested.16 While the rule is very specific as to the mode of service, Florida courts have once again taken a liberal interpretation of these presuit requirements. Strict compliance with the statutory mode of service for the notice of intent is not necessary in order to be able to file a medical malpractice action.17 The mode of service has been held to be merely a technical matter of form that is designed only to facilitate the orderly and prompt conduct of the screening and settlement process.18 As such, hand delivery of the notice of intent has been held to be sufficient for proper service of the notice of intent.19
Finally, it also must be noted that the mailing of the notice of intent tolls the applicable statute of limitations for a period of 90 days.20 During this 90-day period, no suit may be filed and the prospective defendant’s insurer or self-insurer must conduct a review to determine the liability, if any, of the defendant.21 Litigation naturally arose as to precisely when the 90-day screening period should start. The Florida Supreme Court addressed this issue and held that the 90-day presuit screening period should be computed from the date the putative defendant receives the notice of intent to initiate litigation.22 With this decision, there would no longer be any question of whether the 90-day period should start when the notice of intent is mailed or when it is received. This decision has been expanded in recent years to provide that the correct method of calculating the 90-day period during which the statute of limitations is tolled by the filing of the notice of intent is calculated by starting the count on the day after the notice is received.23
Presuit Discovery Process
Each insurer or self-insurer must promptly investigate, review, and evaluate claims during the 90-day period after the notice of intent is mailed.24 This investigation must be conducted in good faith and both the claimant and the prospective defendant must cooperate with the insurer in good faith.25 The investigation shall determine whether there are reasonable grounds to believe the defendant was negligent in the care or treatment of the claimant and whether such negligence resulted in injury to the claimant.26 A claim or defenses may be dismissed if the trial court finds that a party acted unreasonably in fulfilling the statutory duty to cooperate with the insurer’s presuit investigation in good faith.27
If requested, copies of any medical records relevant to a potential medical negligence claim or defense must be provided to a claimant or defendant within 10 business days of a request for copies.28 This presuit requirement must be strictly complied with by both parties to an action. One party’s failure to comply with the requirement to produce relevant medical records within the 10 days shall result in a waiver of the right to receive medical corroboration from the opposing party.29
During the presuit period, the parties shall make discoverable information available without formal discovery.30 Informal discovery may include, among other things, the taking of unsworn statements, the production of documents or things, or physical and mental examinations.31
Unsworn statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party.32 Any party may be represented by an attorney at the taking of an unsworn statement and the taking of unsworn statements is subject to Fla. R. Civ. P. 1.310(d) and may be terminated for abuses.33 If such abuses occur, they are evidence of a failure of the abusing party to comply with the good faith requirements of the act.34
Documents or things, if requested, must be produced within 20 days after the date of the receipt of the request.35 Importantly, copies of all documents produced in response to the request of any party shall be served on all of the other parties.36 Failure of any party to comply with the 20-day time limit shall be evidence of a failure of that party to comply with the good faith requirements of the act.37
A party may require a claimant to submit to a physical examination.38 Unless it is otherwise impractical, a claimant shall be required only to submit to one examination on behalf of all of the parties.39 A report of a physical and mental examination may be used only for the purpose of presuit screening and is otherwise confidential.40 Furthermore, the examining physician may not testify concerning the examination in any subsequent civil action.41
The presuit discovery process should not be taken lightly. An unreasonable failure by either party to comply with presuit discovery will likely result in dismissal of claims or defenses.42 The sanction of dismissal, while certainly severe, does serve its purpose in ensuring compliance with the presuit discovery requirements.
Response to Notice of Intent
At or before the conclusion of the 90-day period, the insurer or self-insurer of the potential defendant must provide the claimant with a response.43 This response may reject the claim, make a settlement offer, or make an offer of admission of liability and for arbitration on the issue of damages.44 Failure to reply to the notice of intent within 90 days after receipt acts as a final rejection of the claim by the potential defendant.45
As with the notice of intent, expert corroboration also is an issue with any response rejecting a claim. At the time a response rejecting a claim is mailed, the potential defendant must submit a verified written medical expert opinion that shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.46 Florida courts have held that the failure to provide an adequate verified written medical expert opinion is not dispositive in dealing with a medical malpractice defendant’s response rejecting a claim.47 However, an inadequate verified medical expert opinion may be prima facie evidence of the lack of a reasonable basis to deny a claim.48
If either party chooses to make an offer of arbitration at the conclusion of the presuit investigation, many issues come into play with the arbitration process should the opposing party choose to accept it as a means of resolving the claim. A detailed discussion of the arbitration process would be an article unto itself, but a very brief synopsis of the arbitration process in claims for medical negligence is warranted. The arbitration statutes provide for a monetary cap on noneconomic damages in medical malpractice claims.49 While it has been argued that this monetary cap is unconstitutional, the Florida Supreme Court has upheld the cap by finding that there was an overpowering public necessity with regard to the control of medical malpractice insurance premiums and no alternative or less onerous method of meeting this crisis had been shown.50 Damages for future economic losses may be awarded by arbitration to be paid by periodic payments and the damages shall be offset by future collateral source payments.51 Punitive damages may not be awarded by arbitration.52
Attention must certainly be paid to the time in which a potential claimant has to file suit after the presuit investigation period concludes. To avoid being barred by the applicable statute of limitations, a suit must be brought within 60 days or within the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was received, whichever is longer after the earliest of the following; the expiration of 90 days after the date of receipt of the notice of intent to initiate litigation, the expiration of 180 days after the mailing of the notice of intent to initiate litigation if the claim is controlled by F.S. §768.28(6)(a), or the claimant’s receipt of a written rejection of the claim.53 Naturally, this complex time requirement has been the subject of litigation in recent years.54 As noted earlier, the correct method of calculating time periods under these rules and statutes is to start counting the day after the notice of intent to initiate litigation is received.55
A final consideration concerns the filing of motions to determine the reasonableness of presuit investigations. This motion can be filed at any time after the completion of the presuit investigation by the parties and after any informal discovery.56 The motion requests the court to determine whether the opposing party’s claim or denial rests on a reasonable basis.57 If the court finds that the notice of intent to initiate litigation mailed by the claimant is not in compliance with the reasonable investigation requirements, the court is required to dismiss the claim and the person who mailed such notice of intent to initiate litigation, whether the claimant or the claimant’s attorney, shall be personally liable for all attorneys’ fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorneys’ fees and costs of the defendant or the defendant’s insurer.58 In making its determination, the trial court may consider any relevant evidence, including inferences to be drawn from the text of the notice of intent and its corroborating expert opinion.59
The reasonable investigation requirement does not apply only to claimants. If the court finds that the response mailed by a defendant rejecting the claim is not in compliance with the reasonable investigation requirements, the court is required to strike the defendant’s response, and the person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorneys’ fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorneys’ fees and costs of the claimant.60 A question naturally arose as to what constitutes that “response” that may be stricken if not in compliance with the reasonable investigation requirements. The Fourth District addressed this issue in Karr, D.D.S. v. Sellers, 668 So. 2d 629 (Fla. 4th DCA 1996). In Sellers, the defendants rejected the claim without a corroborating expert affidavit. The plaintiff then filed suit and, after defendants answered, moved to strike their answers on the ground that they had failed to file a corroborating medical expert’s affidavit when they rejected the claim. The trial court then struck the defendants’ pleadings for failing to comply with Chapter 766. After a trial held only on damages and the entry of a final judgment, the defendants appealed and asserted that the order striking their pleadings was unauthorized by the statute. The Fourth District held that the word “response,” as used in F.S. §766.206(3), is not ambiguous and does not include pleadings. As such, the defendants’ answers were improperly stricken and the court reversed the judgment and remanded the case for a new trial on liability and damages.
The Florida Comprehensive Medical Malpractice Reform Act poses many pitfalls in bringing or defending a claim for medical malpractice in Florida. Critics of the act have long argued that the act bars access to courts for many potential claimants, while proponents of the act have argued that the act effectively weeds out cases that are not supported by some reliable indication of their merits. To navigate successfully through the presuit process, a claimant or defendant must be aware of not only the applicable statutory provisions and rules of civil procedure, but also must be aware of the constantly changing judicial interpretations of these provisions and rules. q
1 Fla. Stat. §§766 et seq. (1995).
2 Winson v. Norman, M.D. , 658 So. 2d 625 (Fla. 3d D.C.A. 1995).
3 F la. Stat. §766.203(2) (1995).
5 Royle v. Florida Hospital-East Orlando , 679 So. 2d 1209 (Fla. 5th D.C.A. 1996); Mieles v. South Miami Hospital , 659 So. 2d 1265 (Fla. 3d D.C.A. 1995).
6 Davis v. Orlando Regional Medical Center , 654 So. 2d 664 (Fla. 5th D.C.A. 1995).
8 Stebilla v. Mussallem, M.D. , 654 So. 2d 664 (Fla. 5th D.C.A. 1995).
9 Fla. Stat. §766.106(2) (1995).
10 Shands Teaching Hospital and Clinics, Inc. v. Barber , 638 So. 2d 570, 572 (Fla. 1st D.C.A. 1994).
11 Wilkinson v. Golden, Jr., D.D.S. , 630 So. 2d 1238 (Fla. 2d D.C.A. 1994).
13 Ingersoll v. Hoffman, D.D.S. , 561 So. 2d 324 (Fla. 3d D.C.A. 1990).
14 Fla. Stat. §766.203(2) (1995).
15 Melanson v. Agravat, M.D. , 675 So. 2d 1032 (Fla. 1st D.C.A. 1996); Kukral v. Mekras, M.D. , 679 So. 2d 278 (Fla. 1996); Archer v. Maddux, M.D. , 645 So. 2d 544 (Fla. 1st D.C.A. 1994).
16 Fla. R. Civ. P. 1.650(d)(1).
17 Patry v. Capps, M.D. , 633 So. 2d 9 (Fla. 1994).
20 Fla. Stat. §766.106(3)(a) (1995).
22 Boyd v. Becker, M.D. , 627 So. 2d 481 (Fla. 1993).
23 Mason v. Bisogno, D.O. , 633 So. 2d 464 (Fla. 5th D.C.A. 1994).
24 Fla. Stat. §766.106(3)(a) (1995).
26 Fla. Stat. §766.203(3) (1995).
27 Fla. Stat. §766.106(3)(a) (1995); Pinellas Emergency Mental Health Services, Inc. v. Richardson , 532 So. 2d 60 (Fla. 2d D.C.A. 1988).
28 Fla. Stat. §766.204(1) (1995).
29 Fla. Stat. §766.204(2); Escobar v. Olortegui, D.D.S. , 662 So. 2d 1361, 1364 (Fla. 4th D.C.A. 1995); Wilkinson v. Golden, D.D.S. , 630 So. 2d 1238 (Fla. 2d D.C.A. 1994).
30 Fla. Stat. §766.106(6) (1995).
31 Fla. Stat. §766.106(7); Fla. R. Civ. P. 1.650(c).
32 Fla. Stat. §766.106(7)(a) (1995); Fla. R. Civ. P. 1.650(c)(2)(A).
33 Fla. R. Civ. P. 1.650(c)(2)(A).
35 Fla. Stat. §766.106(7)(b) (1995); Fla. R. Civ. P. 1.650(c)(2)(B).
36 Fla. R. Civ. P. 1.650(c)(2)(B).
38 Fla. R. Civ. P. 1.650(c)(2)(C).
40 Fla. Stat. §766.106(7)(c) (1995).
41 Fla. R. Civ. P. 1.650(c)(2)(C).
42 Melanson v. Agravat, M.D. , 675 So. 2d 1032 (Fla. 1st D.C.A. 1996); Bartley v. Ross , 559 So. 2d 701 (Fla. 4th D.C.A. 1990).
43 Fla. Stat. §766.106(3)(b) (1995).
45 Fla. Stat. §766.106(3)(c) (1995).
46 Fla. Stat. §766.203(3) (1995).
47 Duffy v. Physicians Protective Trust Fund , 614 So. 2d 539 (Fla. 1st D.C.A. 1993); Williams v. Powers , 619 So. 2d 980 (Fla. 5th D.C.A. 1993).
49 Fla. Stat. §766.207 (1995).
50 University of Miami v. Echarte , 618 So. 2d 189 (Fla. 1993); HCA Health Services of Florida, Inc. v. Branchesi , 620 So. 2d 176 (Fla. 1993).
51 Fla. Stat. §766.207(7)(c) (1995).
52 Fla. Stat. §766.207(d).
53 Fla. R. Civ. P. 1.650(d)(3).
54 Wilder v. Hillsborough County Hospital Authority , 686 So. 2d 617 (Fla. 2d D.C.A. 1996); Mason v. Bisogno, D.O. , 633 So. 2d 464 (Fla. 5th D.C.A. 1994).
55 Mason v. Bisogno, D.O. , 633 So. 2d 464, 466 (Fla. 5th D.C.A. 1994); Boyd v. Becker, M.D. , 627 So. 2d 481 (Fla. 1993).
56 Fla. Stat. §766.206(1) (1995).
57 Id. ; Kukral v. Mekras, M.D. , 679 So. 2d 278, 281 (Fla. 1996).
58 Fla. Stat. §766.206(2) (1995).
59 Watkins v. Rosenthal, M.D. , 637 So. 2d 993 (Fla. 3d D.C.A. 1994).
60 Fla. Stat. §766.206(3) (1995).
Jeffrey L. Blostein is an associate at the law firm of Metzger, Sonneborn & Rutter, P.A., West Palm Beach. He received his B.S. in finance from Florida State University and his J.D. from Nova Southeastern University Shepard Broad Law Center. Mr. Blostein currently practices in the areas of insurance defense; hospital liability, and health care law; professional malpractice defense; and personal injury and wrongful death litigation.
This column is submitted on behalf of the Young Lawyers Division, Adam G. Adams III, president, and Joseph F. Kinman, Jr., guest editor.