After all the medical and hospital records have been collected, your medical malpractice attorney will review them and then, if he/she believes a claim may exist, submit them to a medical expert for review. This expert will generally be a physician who is recognized in same or similar field as having the education, training, and experience to determine whether or not the doctor violated the patient's rights or otherwise breached the standard of care for the doctor at issue.
Expert Review & Affidavit
If, after reviewing the records, the expert physician retained by the lawyer believes the doctor at issue breached the standard of care applicable for that specialty (Ch. 766 of the Florida Statutes), then the expert has to prepare an affidavit attesting to the breaches of care under oath. Without this affidavit, no medical malpractice claim can move forward.
Notice of Intent to Initiate Litigation
After receiving the expert affidavit that a valid claim against the doctor exists, the attorney prepares a Notice of Intent to Initiate Litigation (NOI). The NOI is a letter sent by certified mail, return receipt requested, upon the doctor who was negligent. A copy is also provided to the Florida Medical Board, which is the state agency which oversees licensing of physicians. The NOI will outline the claim and attach the affidavit. This NOI begins the 90-day "pre-suit" period in which the claimant (injured patient) and respondent (doctor), usually their respective attorneys, exchange information. During the 90 days, the doctor (or doctor's insurance company) may accept liability or deny it. In practice, most physicians and their insurance companies deny it and provide their own expert affidavit in defense of their care.
No Lawsuit is Permitted Until the Presuit Period is Over
Importantly, in Florida, a lawsuit against a doctor for medical malpractice can be filed in court only when the pre-suit requirements have been satisfied, e.g. expert affidavit, certification of good faith by the victim's attorney, and 90 pre-suit period has expired. Unless pre-suit requirements have been satisfied, a lawsuit will not be permitted. If someone files a medical malpractice lawsuit without satisfying the presuit requirements, then the lawsuit can be, and often is, dismissed with prejudice (meaning the lawsuit is barred forever).
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