Medical Malpractice Pre-Suit Procedure

Tampa personal injury attorneyAfter all of the medical and surgical records have been reviewed by expert medical consultants and it is determined that the client has suffered significant injuries as the result of medical malpractice, the next step in the claims process is the Pre-Suit Procedure.

Unlike other injury claims, you can’t proceed to filing suit against the negligent health care defendants until the pre-suit requirements are met. What is called a 90 day letter of intent to file a suit must be sent to all of the probable defendants. The letter must contain affidavits from all of the client’s experts advising that they have reviewed all of the pertinent records and they feel that the health care rendered by the client’s providers was below the standard of care.

Also the letter will set forth the injuries sustained by the client as a result of the violation of the standard of care. In addition, the attorney may submit questions to be answered by the providers regarding the facts and issues in the claim. The attorney may also request documents from them that might be important to the claim. The health care defendants are supposed to respond to the letter and the requests within 90 days of the receipt of same.

The defendants may do one of three things during the next 90 days. They may participate in the process and submit their own questions and requests for certain documents and information to the client. They may answer the client’s questions and requests. They will then have experts of their own review all of the client’s information and records and submit affidavits regarding their conclusions regarding the claimed violations of the standard of care. After all of this is completed, the doctor’s attorney will answer the letter of intent and submit their experts affidavits and, in most cases, will deny any wrongdoing that violated the standard of care. In my years of experience, the defendants rarely admit fault or responsibility in their answer.

Also, the defendants can do nothing and just let the 90 days pass without any response. Also they can simply admit fault and provide no other information. This rarely happens. Once the denial is received or the 90 days passes, whichever comes first, then the client can finally file suit and proceed with litigation.

Deciding to proceed with litigation should be carefully considered. MedMal litigation is extremely expensive and very time consuming. The expenses, in some cases, can exceed $100,000. or more. The time from sending the letter of intent to trying the case to a verdict can be as long as two years or more. Also most jurors dislike lawsuits against doctors and hospitals. You must have a very strong case and significant injuries and disabilities to have any chance of prevailing. These types of cases are usually handled on a contingent fee basis and if there is no recovery, then there is no fee or costs owed to the client’s attorney. Therefore, the client’s attorney must be extremely selective in deciding to proceed with a medmal claim.

Medical Malpractice Claims

medical malpractice - Tampa personal injury attorneyMedical Malpractice and Medical Negligence are the same thing. It means that a healthcare provider carelessly, negligently caused harm and injury to a patient in the course of the treatment of the patient. This includes doctors, nurses, chiropractors, physical therapists among others.

As a Tampa Personal Injury Attorney, I have handled many medical malpractice cases. When investigating a medmal claim, the first thing that needs to be done is to secure all of the medical records that have information concerning the claim. Medical authorization from the patient will allow the attorney to examine all of the records to determine if the client was harmed by treatment that was below the appropriate standard of care.

The standard of care is a national standard and applies anywhere in the country. The standard is the minimal amount of care that is considered to be satisfactory care and is not negligent or malpractice. If the care is below the standard, then it is deemed to be medical malpractice. It is like drawing a line and any care above the line is acceptable but care below the line is not and would validate a medmal claim.

If the attorney feels that the client’s claim may have merit, then the records and any other medical information is submitted to an expert for review. The review must be by a similar healthcare professional as the client’s healthcare professional who he is making a claim against. In other words, if the claim is against a nurse, then the reviewer must be a nurse of similar training and expertise. If the claim is against a doctor then the reviewer must be a doctor of the same specialty and training as the one against whom a claim is to be made. For example, a claim against a surgeon must be reviewed by a surgeon. A claim against a primary care doctor must be reviewed by a primary care doctor.

If the review determines that the care rendered was below the applicable standard of care, then the next thing to determine is whether or not the client has been substantially harmed or injured by the substandard care. If the injury is minimal and no permanent damage is the result, then the attorney will probably not proceed forward with the claim because it would not be economically feasible. This means if the attorney feels that the value of the claim is less than the time, effort and money to litigate the claim, he will go no further. Keep in mind that medmal cases, like other negligence case i.e. auto, slip and fall etc., are handled on a contingence fee basis. No fee or costs are owed the attorney unless he recovers compensation for the client. It is the lawyer’s money that finances the case and if he feels that the chances of recovery are small, then he will not finance the case.

If the claim appears to be viable, meaning the healthcare provider’s care was below the standard of care and the client’s injuries are substantial, then the attorney will proceed to make a legal claim for the client following the multiple legal requirements to do so in Florida.

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