When someone is injured due to the negligent act of a healthcare provider, they may be able to pursue a claim for compensation against the responsible parties through a Florida medical malpractice lawsuit. However, before a case can be filed, specific procedural requirements must be met.
Under Florida’s Medical Malpractice Act, a medical malpractice plaintiff must conduct a reasonable investigation to determine that their claim is being brought in good faith. Under Florida Statutes section 766.104, good faith can be shown by obtaining a written opinion from an expert stating that, in the expert’s opinion, the plaintiff’s case has merit. An affidavit must be completed for each defendant named in the plaintiff’s case.
A separate section of the Medical Malpractice Act describes in detail the necessary qualifications for an expert. Under section 766.102, the most basic requirements for any party to be qualified as a medical expert are that the witness is a healthcare provider who holds an active and valid license. The witness must also conduct a complete review of the relevant medical records before being qualified to testify.
If the defendant doctor is a specialist, then an expert must specialize in the same specialty as the defendant and have been either practicing, teaching, or researching in that field for the three years immediately preceding the incident. Notably, while section 766.102 refers to these requirements in terms of an expert’s ability to “testify,” a recent state appellate decision held that these requirements also applied to an expert who completes an affidavit of merit under section 766.104.
In that case, the plaintiff filed a lawsuit against an orthopedic surgeon based on an injury that allegedly occurred during a hip replacement procedure. However, the plaintiff attached expert affidavits from a radiologist, a nurse, and an emergency room physician. The court held that the three affidavits failed to comply with the language in 766.102 and 766.104 because none of the plaintiff’s affidavits were completed by an expert that specialized in the same field as the defendant doctor.
The plaintiff unsuccessfully tried to distinguish between the two requirements, arguing that 766.102 refers to “testimony” and 766.104 does not require the expert who completes the affidavit testify at trial. However, the court determined that because 766.104 refers specifically to 766.102, the “same specialization” requirement applied to both testimony and pre-suit affidavits.
Have You Been the Victim of Medical Malpractice?
If you or a loved one has recently been injured due to what you believe was negligent medical care, you may be entitled to financial compensation through a Florida medical malpractice lawsuit. As can be seen from the above discussion, the procedural requirements of Florida medical malpractice cases can be exceedingly complex, and are best left to attorneys who are experienced in this area of the law. At Frankl Kominsky, our dedicated team of Florida injury attorneys have decades of experience successfully handling all types of Florida medical malpractice cases, and know what it takes to succeed on our clients’ behalves. To learn more, call 561-567-0214 to schedule a free consultation today.
See Additional Blog Posts:
Court Determines Liability Release Waiver Did Not Prevent Plaintiff’s Claim in Recent Florida Wrongful Death Case, South Florida Injury Attorneys Blog, January 9, 2019.
Distracted Driving Causes Over 50,000 Florida Car Accidents Annually, South Florida Injury Attorneys Blog, December 26, 2018.