Medical Malpractice, do I need a Dr’s OK to sue another Dr?

Clearwater Medical Malpractice Attorney

Yes, according to Florida Statute (malpractice statute) (F.S.) 766.106 (full text below) you must conduct a presuit investigation which requires an attorney to follow F.S. 766.203 as it states in pertinent part :

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

Doctor Clearwater

 

In order words a medical malpractice lawyer will need to consult another Doctor before they can initiate a lawsuit. This is one of many tort reforms Florida has instituted.  In fact, Florida is one of the leading states in medical malpractice reforms.  The legislature, however, still argues that medical malpractice cases are forcing Doctors to leave the state.  Such a statement is conjecture and completely unfounded.  I know many doctors, and they see no benefit to these laws, yet the legislature continues to spend your time and money for the benefit of insurance companies that want to receive malpractice premiums and don’t want to pay on honest claims.  Despite all these reforms, malpractice insurance continues to climb, and premiums in Florida, are not lower than states that do not have all the sweeping reform.

 If you have any questions about medical malpractice contact Mark Perenich today

766.203?Presuit investigation of medical negligence claims and defenses by prospective parties.—

(1)?APPLICATION OF PRESUIT INVESTIGATION.—Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence claims and defenses. This shall include:

(a)?Rights of action under s. 768.19 and defenses thereto.
(b)?Rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28 and defenses thereto.

(2)?PRESUIT INVESTIGATION BY CLAIMANT.—Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a)?Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—Prior to issuing its response to the claimant’s notice of intent to initiate litigation, during the time period for response authorized pursuant to s. 766.106, the prospective defendant or the defendant’s insurer or self-insurer shall conduct an investigation as provided in s. 766.106(3) to ascertain whether there are reasonable grounds to believe that:

(a)?The defendant was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.

(4)?PRESUIT MEDICAL EXPERT OPINION.—The medical expert opinions required by this section are subject to discovery. The opinions shall specify whether any previous opinion by the same medical expert has been disqualified and if so the name of the court and the case number in which the ruling was issued.
History.—s. 50, ch. 88-1; s. 26, ch. 88-277; s. 33, ch. 91-110; s. 113, ch. 92-33; s. 3, ch. 92-278; s. 60, ch. 2003-416; s. 154, ch. 2004-5.

 

766.106?Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—

(1)?DEFINITIONS.—As used in this section, the term:

(a)?“Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.
(b)?“Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c)?“Insurer” includes the Joint Underwriting Association.

(2)?PRESUIT NOTICE.—

1(a)?After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.
(b)?Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, the provisions of s. 456.073 apply and, for a licensed facility, the provisions of part I of chapter 395 apply.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—

(a)?No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure shall include one or more of the following:

1.?Internal review by a duly qualified claims adjuster;
2.?Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;
3.?A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;
4.?Any other similar procedure which fairly and promptly evaluates the pending claim.

Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant shall appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud.

(b)?At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:

1.?Rejecting the claim;
2.?Making a settlement offer; or
3.?Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.
(c)?The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.

(d)?Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:

1.?The exact nature of the response under paragraph (b).
2.?The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.
3.?The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.
4.?An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.
5.?An estimation of the costs and attorney’s fees of proceeding through trial.
(4)?SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
1(5)?DISCOVERY AND ADMISSIBILITY.—A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).

(6)?INFORMAL DISCOVERY.—

(a)?Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.

1(b)?Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows:

1.?Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.
2.?Documents or things.—Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204.
3.?Physical and mental examinations.—A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4.?Written questions.—Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions.
5.?Unsworn statements of treating health care providers.—A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements.
(c)?Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.
(d)?Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served.
(7)?SANCTIONS.—Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.
History.—s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233.
1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”
Note.—Former s. 768.57.

Perenich Medical malpractice lawyers

Surgery Risks Don’t End in the OR: Your Post-Op Care Can Be a Matter of Life and Death

Perenich injury Lawyer Clearwater Tampa St.Pete

Today we have a guest blog with a great article, I want to thank Mario Cattabiani for the article.  He knows what he is talking about when it comes to Medical Malpractice.  Enjoy!

 

Surgery Risks Don’t End in the OR: Your Post-Op Care Can Be a Matter of Life and Death

 Post-Surgical Risks and Steps You Can Take to Avoid Them

DoctorEveryone knows that surgical procedures come with significant risks, but not nearly as many are aware that the OR is just the beginning as far as health hazards. In fact, the recovery room can also be dangerous, and patients in the post-anesthesia recovery unit (PACU) are susceptible to a number of potential issues.

Risks to Be Aware Of

Although no surgical centers or patients are exactly the same, there are a few risks common to most cases:

  • Complications due to anesthesia. These include emergence delirium, nausea, diarrhea, and more.
  • Infection. This can occur at the incision site or be an unrelated illness contracted at the facility.
  • Lack of supervision by nurses. Many hospitals are chronically understaffed and may not have enough nurses on staff to properly monitor all PACU patients.
  • Malfunctioning or improperly set equipment. If the equipment monitoring the patient’s vital signs is not functioning properly or has been muted, for example, then nurses may not notice the patient’s condition degrading.
  • Side effects from medications. Strong pain medicines like Fentanyl can cause serious injury and even death if administered improperly or if the patient has a bad reaction to them.

 Questions to Ask Your Doctor

To make sure that you’ll be receiving the highest level of care both during and after your surgery, you’ll want to ask your doctor some questions prior to the procedure:

  • What is the surgeon’s experience with this procedure, and how many times has he or she performed it before?
  • How many other people will be assisting in the OR?
  • Has the team that will be performing the surgery worked together before, and are there any new members?
  • Has the anesthesiologist assisted with this procedure before?
  • If you have any health issues, ask if the staff have performed the procedure on someone with that condition before. For example, if you have diabetes, ask if they have performed the procedure on another diabetic before and if so, what the results were.
  • What is the PACU nurse-to-patient ratio?
  • What medications will you be given after the surgery, and what are their side effects?

These are just a few questions to ask before undergoing a procedure. Regardless of what type of surgery you’re getting, make sure to talk with your doctor not only about the risks of the procedure itself, but also about the details of aftercare. You can’t ensure a 100% perfect recovery, but by following those steps, you can certainly improve your chances.

Mario Cattabiani is the Director of Communications at Ross Feller Casey, LLP, a personal injury and medical malpractice law firm.

Perenich Medical Malpractice lawyers

Medical malpractice caps

Medical Malpractice Lawyer Clearwater

On July 31, 2012, the Missouri Supreme Court held that the 2005 Missouri law capping noneconomic damages at $350,000 in medical malpractice action is violates a plaintiff’s right to a jury trial by his or here peers (noneconomic damages are those damages that are not easily ascertainable e.g. pain, suffering, loss of enjoyment (not being able to pick up your child, not being able to have sex or reproduce…etc).  This principal has been embedded in the Missouri Constitution since in 1820.  Almost 30 states have laws in place that limit damages in medical liability cases, in an attempt to reform tort law, or so-called “tort reform”. Caps vary from state to state as an attempt to contain medical costs, although there is no evidence that caps help do this. Courts have overturned caps as unconstitutional in at least 11 states.

The Supreme Court’s majority pointed to the Bill of Rights of the Missouri Constitution, which states “that the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The court wrote that when the constitution was enacted in 1820, Missourians had a common law right to seek damages for medical malpractice claims. Therefore, “any limit on damages that restricts the jury’s fact-finding role violates the constitutional right to trial by jury,” the court said in a majority opinion written by Chief Justice Richard Teitelman.

The Florida Supreme Court is set to hand down a decision on the fate of Florida’s caps on damages in medical malpractice cases. The case made its way to the Florida Supreme court as the United States District Court for the Northern District of Florida had to decide whether the caps are constitutional in the case Evette McCall v. United States of America SC11-1145 that addresses the malpractice law.

Florida Medical Malpractice statute

http://www.flsenate.gov/laws/statutes/2011/766.118Picture of a brain injury in a medical malpractice case.

In 2003 the Florida Legislature enacted this law, the medical malpractice law imposes a $500,000 cap on non-economic damages (e.g. suffering due to death of a spouse or parent), an amount that increases to $1 million in the event of a catastrophic injury or death. The cap for emergency services is set even lower at $150,000 not to exceed $300,000. If the plaintiff can show negligence on the part of someone other than a licensed health care provider, the caps are set at $750,000 and $1.5 million, regardless of where the medical services were provided. There is no tell when the Florida Supreme court will render this medical malpractice opinion.

If you believe that you or a loved one was injured or killed as a result of medical negligence or Medical malpractice, please contact me today. 727-386-9677