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If Your Malpractice Case Didn't Begin with a Pre-Suit Investigation, You're in Trouble

Stewart Tilghman Fox Bianchi & Cain, P.A. has been handling medical malpractice cases for decades. Under Florida law, these cases are unique from other personal injury and wrongful death cases; there is an entire chapter of our laws devoted to handling these types of claims. That is why it is critical that victims of medical malpractice hire attorneys that have experience and expertise in handling these types of claims.

If your attorneys fail to comply with Florida’s stringent malpractice laws or retain the proper experts, your case may be thrown out of court and your claims forever barred. Because the law in these cases is so complex and must be handled differently than other types of personal injury cases, many experienced personal injury attorneys across the state call upon us to co-counsel on medical malpractice cases.

Initiating the Pre-Suit Process

In Florida, before you can file a lawsuit for medical malpractice, you must first go through the “pre-suit” process. Prior to initiating your case, your attorneys must investigate the case to determine whether malpractice has occurred. Your attorney must hire expert witnesses to review the records and provide a sworn, written statement that in his or her opinion, medical malpractice caused the victim’s injury or death. Florida law requires the expert who corroborates your claim to practice the same specialty as the healthcare provider you plan to sue.

Even then, you still cannot yet file your case. The next step is for your lawyer to give the defendants notice that you intend to sue them. Your attorneys must also provide the defendant with your expert’s opinion. That notice triggers a ninety-day period during which the defendants can also investigate your case. At the conclusion of this investigation period, you can finally file your case.

If you and your attorneys fail to comply with the requirements of Florida’s pre-suit laws, your case may be thrown out altogether.

How Making a Mistake During the Pre-Suit Process Can Hurt You

A recent case from Florida’s Fifth District Court of Appeal illustrates this unfortunate outcome. In Davis v. Karr, et al., the patient alleged that her doctor, an orthopedic surgeon, fractured her femur while performing a hip surgery on the patient. Prior to filing her lawsuit, the patient provided the defendant with sworn statements from several experts including an emergency room physician, a radiologist, and a nurse, all stating that the orthopedic surgeon negligently caused the fracture of the patient’s femur. The problem is, the patient did not provide a sworn statement from an orthopedic surgeon laying out the mistakes that were made during the surgery.

After the patient filed her lawsuit, the doctor moved to dismiss the case because none of the expert sworn statements provided during the pre-suit period were from an orthopedic surgeon like the defendant doctor. This decision was upheld on appeal and the patient’s case was forever barred. This is a terribly unfortunate outcome for the patient that left her saddled with damages that could not be recovered from the doctor .

The bottom line is, medical malpractice cases in Florida present unique circumstances requiring the help of lawyers who have experience prosecuting these claims and understand the nuances of Florida law. Our firm has over 100 years of combined experience in the field of medical malpractice. We have successfully pursued these cases across the state of Florida and have won millions for the patients and parents who have been wronged by their medical providers.

If you've been harmed by a healthcare provider, call Stewart Tilghman Fox Bianchi & Cain, P.A. at 305-770-6335 as soon as possible. We'll provide you with your legal options while handling your case correctly, giving you the best possible chance at success.