February 8, 2018
The Statutory Advantage in Medical Malpractice Actions
August 12, 2016
Prior to the commencement of litigation, the prospective parties must complete a pre-suit investigation pursuant to Fla. Stat. § 766.203. Pre-suit notices of intent must strictly comply with Fla. Stat. § 766.106. Furthermore, the prospective claimant is required to notify each prospective defendant by certified mail, return receipt, of their intent to initiate litigation for medical negligence before any action may be filed. See Fla. Stat. § 766.106(2)(a). Proper statutory notices must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the two-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the Plaintiff’s expert who signed the required affidavit, and the executed authorization form provided in § 766.1065. See Fla. Stat. § 766.106(2)(b).
A party’s failure to strictly comply with each and every requirement of § 766.106, presents grounds for a determination of inadequacy. If the notice of intent fails to comport to the statute, then any complaint filed thereafter is arguably flawed, as filing a complaint prior to service of the notice of intent is grounds for dismissal of the action. Bove v. Naples HMA, LLC, et al., 41 Fla. L. Weekly D827f (2016); see also Kukral v. D. Mekras, M.D., 679 So. 2d 278, 284-85 (Fla. 1996). Of course, a flaw in the notice of intent is only fatal if it cannot be cured prior to the expiration of the statute of limitations. Stein v. Feingold, 629, So. 2d 998, 999 (Fla. 3d DCA 1993). While the majority of motions to dismiss are not dispositive, filing such a motion can be extremely effective in proffering to the bench what will eventually be the basis of a Motion for Summary Judgment. The strategic timing of these preliminary motions can be cost effective as it may result in the dismissal of the entire claim if the shorter statute of limitations has expired.
Due to the number of pre-suit requirements buried within the rules, compliance with the statute of limitations can often times be a bit trickier than expected. While the notice of intent to initiate litigation must be served within the time parameters set forth in Fla. Stat. § 95.11, for 90 days after the notice is filed, the statute of limitations is tolled as to all potential defendants. Pursuant to Florida Rules of Civil Procedure 1.650(b)(1), this notice serves not only as notice to the party directly served but also to any other prospective defendant “who bears a legal relationship” to that party or medical practice. Kukral, 679 So. 2d at 285 (holding that the employer was in a legal relationship with the physician and accordingly, notice to the physician operated as notice to the employer under rule 1.650). In the context of an employee/employer relationship, or even that of an independent contractor or placement agency scenario, it is common for notice to be served on the physician only, especially in cases where placement agencies are used to originate the relationship between the hospital or medical practice and physician.
It is the plaintiff’s obligation to investigate, determine, notify, and be aware of those with whom a potential defendant may have a legal relationship. Keep in mind, this “up-the-chain” notice only applies to those who “bear a legal relationship” to their superior agency at the time of service of the notice. Where a prospective defendant is no longer in a legal relationship with the party served, the notice to the original party does not operate as notice to the third-party defendant. Goldfarb v. Urciuoli, 858 So. 2d 397, 398-399 (Fla. 1st DCA 2003). The key is the relationship at the time of the service of the notice of intent to initiate litigation, not a prior relationship at the time of the alleged malpractice. Id.
A seemingly insignificant detail such as the return receipt on a notice of intent to sue or in cases of alleged liability under the doctrine of respondeat superior, the date upon which the physician and medical agency terminated their relationship after the date of alleged malpractice, can be the difference in obtaining a dismissal of a medical malpractice claim, to the tune of several million dollars in many circumstances.