After all the nursing home records have been collected -- which, depending upon the length of the residency, can run into the thousands of dollars ($1/page) -- your nursing home abuse attorney will review them and then, if he/she believes a claim may exist, submit them to a nursing home expert for review. This expert will often be an experienced nurse, nursing home administrator, or physician who is recognized in the nursing home field as having the education, training, and experience to determine whether or not the nursing home violated the resident's rights or otherwise breached the standard of care for nursing homes.
Expert Review & Affidavit
There has been some debate as whether an Expert Affidavit is required to start pre-litigation process. We believe it is a best practice, not only to ensure you have a meritorious claim, but avoids the protracted fight on the issue. In other words, you actually can save more time by getting a the expert review.
If, after reviewing the records, the nursing home expert believes the nursing home violated the nursing home resident's rights (Ch. 400 of the Florida Statutes), then the expert has to prepare an affidavit attesting to the violations under oath. Without this affidavit, no nursing home abuse claim can move forward.
Notice of Intent to Initiate Litigation
After receiving the expert affidavit that a valid claim against the nursing home 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 nursing home. A copy is also provided to the Florida Agency for Health Care Administration (ACHA), which is the state agency which oversees nursing homes.
The NOI will outline the claim and attach the affidavit. This NOI begins the 75-day "pre-suit" period in which the claimant (injured resident) and respondent (nursing home), usually their their respective attorneys, exchange information.
During the 75 days, the nursing home may accept liability or deny it. In practice, most nursing homes 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 nursing home for violation of a resident's rights 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 75-pre-suit period has expired.
Unless pre-suit requirements have been satisfied, a lawsuit will not be permitted. If someone files a 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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