Notice for Pre-suit Screening

766.106 The following information pertains to the screening period needed for pre-suit, the notice needed before being able to file a medical negligence, the offers needed for arbitration and admission of liability, review, and the informal discovery phase which all applies to the state of Florida only.

(1) The following terms that will be used in this section refer to:

(a) Failing to render or out of rendering medical services and care refers to “Medical negligence claim” or “medical malpractice claim”.

(b) Any uninsured prospective defendant or any self-insured permitted by s.627.357 refers to “Self-insurer”

(c ) The Joint Underwriting Association refers to “Insurer”

(2) Notice for Pre-suit

(a) Before filing a claim for a medical negligence and after completing the pre-suit investigation according to s.766.203(2), each plausible defendant must be notified of such action to file through certified mail-return receipt requested. At the time of the medical allegations, two years prior to that date, any healthcare provided that was visited or that cared and treated the plaintiff must be written in the form of a list and provided in the notice of each potential defendant, and the information of the medical expert and medical records that served the purpose to sign the affidavit and formula in s.766.1065 which allows authorization that was used.

(b) Whenever an authorized facility through chapter 395 is involved in a claim or allegation, and the proper court of jurisdiction has received the claim or allegation, then the Health Care Administration Agency must be supplied with a copy of the initial complaint. The Health Department shall be supplied a copy only if the facility involved in the claim is not authorized through chapter 395.

The legal rights that the plaintiff has to proceed with filing a claim is not obtrude by the necessity to provide these copies. To determine if there was any misconduct performed by the licensee and such action requires disciplinary action, each organization that is provided a copy will commence a review of each complaint that has been filed against them of which in s.456.073, compliance must follow and licensed facilities must have the applications of part 1 under chapter 395.

(3) Pre-Suit Investigation Involving Prospective Defendants

(a) No lawsuit can be created until three months have passed after the potential defendant has received notice of the plaintiff’s intent to file. As provided in s.766.203(3), the 90 day period provided to the defendant, insurer, or their self-insurer to determine the liability can be performed through an investigation. For the investigations, evaluations, and reviews of the claims in the three month period, each self-insurer, and insurer will have a certain procedure to follow. One or more of the following shall be needed for the procedure:

1. A suitable qualified claims adjuster must perform an internal review;
2. Formation of a panel encompassed with a suitable qualified claims adjuster, a lawyer who is knowledgeable in either the defense of prosecution of medical malpractice actions and a medical professional who is trained and skilled in the same area of expertise as the defendant in question;
3. Having a medical review committee and an agreement through contract for any health care providers either locally or in the state;

4.The evaluation of the pending claim that is promptly and fairly performed with any similar procedure.

The potential defendant and the plaintiff must cooperate in good faith with the insurers, and the investigation of the claims performed by each insurer or self-insurer should be committed in good faith. The plaintiff may have to appear in front of a medical review committee or pretrial screening panel to submit a physical examination if the insurer requires it. Claims or defenses will be justifiably dismissed if any party fails to comply with this section. If there is no intentional fraud committed, no civil liability will be given for participating in a pretrial

(b) A response by the defendant’s self-insurer or insurer must be given to the plaintiff before the 90-day period is over. The following must be provided:

1. Whether the claim was rejected
2. Offering a settlement amount; or
3. Proposing that an arbitrate is performed in which only the issues of damages will be held as liability is deemed admitted by the defendant. Depending on the limit of general damages, this offer can be made.

(c ) If the plaintiff does not have an attorney, the response must be delivered to the plaintiff, if not, the defendant must send their response to the plaintiff’s attorney by certified mail with the return of receipt requested. A claim of final denial will occur if no response has been given by the defendant’s insurer, their self-insurer, or themselves within the three-month period provided.

(d) Within a month after the response has been received, the response that was given by the insurer, self-insurer, or defendant, the plaintiff’s lawyer must let the plaintiff know about the details of such response.

1. The following must be mentioned in the response under paragraph (b)
2. The exact terms to settle, offer to arbitrate for the damages, and the admission of liability.
3. The consequences financially and legally that will come from admitting liability, or rejecting or accepting the settlement offer.
4. The likelihood of success and time needed for the trial will be determined by the merit of the plaintiff’s lawsuit.
5. The cost and attorney’s fees in the approximation that will derive from electing to go to trial.

(4) Service of Pre-Suit Tolling and Notice.

The defendant must receive the intent to file a lawsuit within the time period that is permitted in s.95.11. Yet, the statute of limitations for all prospective defendants is tolled during the 90-day period. The conditions set by each party during extension of the 90-day period tolls the statute of limitation. The time followed will be whichever period of the two is longer; the statute of limitations or the 90-day time frame.

(5) Admissibility and Discovery.

The opposing party cannot use any discussion, written document, statement, report, or other work that was produced during the pre-suit screening process as admissible in civil court or during the discovery phase. Civil liability will not fall on any participant in the pre-suit screening process including, employees, associates, witnesses, doctors, investigators of the defendant. Under s.459.015(1)(qq), s. 458.331(1)(oo), or s. 466.028(1)(ll), no licensed dentist under chapter 466, or licensed physician under chapter 458 or 459, that submits a verified written expert opinion will be immune from being subjected to a disciplinary action or denial of a license.

(6) Informal Discovery.

(a) Discoverable information can be made available by the parties without the need for a formal discovery once the prospective defendant has received the notice of a pending claim. Defenses will be asserted or the claim will be dismissed if they fail to do so.

(b) During the informal discovery, the examinations that take place to the mental state and physical state, statements that are made without being sworn, and documents or things that want to be produced can be acquired as follows:

1. Unsworn statements: Statements that are made without being sworn to might be mandated by the opposing party and can only be used for the sole purpose of the presuit screening. No statement that is obtained can be admitted during the phase of discovery or during the civil lawsuit. Reasonable notice must be provided in writing to all parties if a party desires to take an unsworn statement. The address and name of the party that will be examined must be present in the notice, along with the place and time for taking the statement. Unless it is unfeasible, the examinations must be conducted at the same time as other parties. Representation of legal counsel can take place during the unsworn statements. A videotape, stenographic, or electronic recording of the unsworn statement can be made. A statement that was obtained which was not sworn that is determined to have been abused will be removed and the Florida Rules of Civil Procedures will subject that statement to its elements.
2. Things or documents: Any party is able to request the discovery of things or documents and whoever is requesting such documentation must for the production of them within 20 days after the request has been received. Discoverable things or documents must be produced by the required party within their control or possession. The production of medical records should be created as mentioned in s.766.204.
3. Mental and physical examinations: An injured plaintiff might be required to perform a mental and physical examination by an appropriate medical professional at the request of the prospective defendant. Reasonable notice in writing must be given to all parties that will be subjected to an examination about the place and time for it by the prospective defendant. On behalf of all prospective defendants, the plaintiff is only required to submit to one examination, unless unfeasible. The nature of the injury endured by the plaintiff and which relates to the defendant’s liability shall determine which examination the plaintiff will take. Upon payment for the production of records, the production shall be obtained and can solely be used for the pre-suit screening. If not, confidentiality must remain for the report and the report will be excluded from exclusion the requirements of s. 24(a), Art. I of the State Constitution. and s. 119.07(1).
4. Written questions: The written answer to questions, which should not exceed 30, can be requested by any party. Within 20 days following the receipt of those questions, a response must be given.
5. 5. Medical professionals unsworn statements: Unsworn statements of the plaintiff’s treating medical professionals can be taken by the potential defendant or their attorney. The statements that are made must be relevant to the wrongful death or personal injury that was suffered by the plaintiff. Opportunity to be heard and realistic notice must be provided to the plaintiff by the prospective defendant before taking such statements. The attendance of each taking of statement can be done by the plaintiff or the plaintiff’s lawyer.

(c ) Each notice that is requested during the informal pre-suit discovery, must be done in writing, and each party is entitled to a copy of the notice.  The notice or request should have a certificate of service present within, which should include the date when the notice or request was started, the address and names of the person/s receiving the notice or request, and the manner of service of such notice or request.

(d) Any document that comes from such request must be given in copy to every party. The date when the notice or request was started, the address and names of the person/s receiving the notice or request, and the manner of service, and nature for such notice or request must be stated by the lawyer providing copies.

(7) Sanctions: The defense raised or claim made can be dismissed if any party fails to cooperate during the pre-suit investigation.