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Florida’s Pre-Suit Notice Requirements and the Role of Medical Experts

In traumatic brain injury cases, as in all medical malpractice actions in Florida, injured patients are required to comply with the state’s pre-suit notice requirements. These statutory prerequisites to the lawsuit, which are designed to weed out frivolous cases, add an element of expert opinion—a question over which parties frequently litigate—fairly early in the course of trial. Anyone seeking to institute a medical malpractice suit must do three things: (1) conduct an investigation that provides reasonable grounds to believe that the provider was negligent; (2) serve each defendant with a “notice of intent to initiate litigation”; and (3) corroborate the facts with a “verified written medical expert opinion from a medical expert.” As such, the pertinent question often becomes whether or not the particular person put forward as an expert is qualified to offer an opinion on the particular case.

Principles in Action in a Brain Injury Case

The case of Holmes Regional Medical Centerv. Wirth provides an interesting example. In that case, the plaintiff, Mr. Wirth, was admitted to the medical center after complaining of abdominal pain. His physician prescribed narcotics to address his pain, but his nurses did not monitor him appropriately for known side effects. They failed to check on him or document his vital signs throughout the night. They then found Mr. Wirth unresponsive and suffering respiratory distress. Mr. Wirth stopped breathing for 13 minutes and suffered serious brain damage as a result.

Mr. Wirth’s family brought suit against the medical center and, in due course, their attorney ensured that they complied with Florida’s pre-suit notice requirements. They hired a medical expert—a nurse who had been in practice for over 30 years—to consult on the case. The nurse provided an affidavit stating that, in her opinion, the hospital nurses’ failure to check in on Mr. Wirth and monitor his vital signs while he was under the influence of the narcotics was negligent and that it had caused the oxygen deprivation to his brain. The hospital, however, wasn’t convinced that this nurse was actually qualified to offer an expert opinion in the case and therefore brought a motion to dismiss, claiming that the plaintiffs had failed to comply with the pre-suit notice requirements.

A lengthy battle ensued over the precise nature of the nurse’s qualifications and professional history, with the hospital arguing that, since she was merely a nurse and not a neurology expert, she wasn’t qualified to offer an opinion on the causes of Mr. Wirth’s brain injuries. At several different junctures, the plaintiffs offered supplemental affidavits from the nurse, which elaborated on her recent professional experience, long history of work in nursing, and familiarity with cases like Mr. Wirth’s involving prolonged oxygen deprivation to the brain. The trial court ultimately found that she was qualified and allowed the suit to proceed.

But the hospital wasn’t finished fighting and appealed the decision. The Florida Court of Appeals confirmed that the nurse was more than adequately qualified to speak to the issue, noting that Florida’s pre-suit notice requirements weren’t intended to create protracted battles over qualifications, but were rather meant to keep meritless litigation out of the courts. “They are not intended to be a Daedalean labyrinth that denies a plaintiff access to the courts,” the court wrote.

Good Counsel Brings the Fight

If you or someone you love has suffered a traumatic brain injury, you need counsel who knows the technical requirements of Florida law and will fight to make sure your case gets where it belongs: in front of the jury. Give the experienced brain injury attorneys at Gary Roberts & Associates, P.A. a call.

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