Florida Law Keeps Many Valid Malpractice Cases Out of Court

Florida’s strict medical malpractice laws often deprive injured patients of their right to a day in court. Before a victim may even attempt to sue a negligent doctor, there must be a “presuit investigation” to establish that there are “reasonable grounds” for the malpractice complaint. Among other thing, the victim must present an affidavit from a medical expert corroborating the patient’s claims.

Wrongful Death Case Dismissed Following Defense “Fishing Expedition”

But even with such an affidavit, a court may still block a patient’s malpractice lawsuit if the defendant manages to challenge the credibility of the medical expert. This was the subject of a recent decision by a divided panel of the Florida First District Court of Appeal. A majority of the panel barred a wrongful death lawsuit due to what the dissenting judge called a “fishing expedition” against the plaintiff’s medical expert.

The victim in this case was a woman who delivered a stillborn child and died three days later while under medical supervision. The plaintiff is the woman’s mother, who filed a wrongful death lawsuit against a number of medical providers. In accordance with Florida’s presuit investigation law, the plaintiff offered an affidavit prepared by an obstetrician/gynecologist with over 30 years experience in patient care. The expert had also “served in several roles requiring her to supervise OB/GYN nurses and other medical staff at a hospital and to be familiar with the relevant standards of care,” according to court records.

Despite this, the defendants’ attorneys demanded additional information to prove the expert’s qualifications. The trial judge sided with the defendants on this point, and when the plaintiff declined to provide a satisfactory response, the judge decided to strike the affidavit and dismiss the lawsuit. The plaintiff appealed.

Unfortunately, two out of three judges on the First District panel supported the trial judge’s decision. The majority said the plaintiff’s “lack of cooperation” with the defendants’ efforts to “offer sufficient proof of [the plaintiff’s] proffered expert’s statutory qualifications” justified the severe sanction of dismissing her case.

The dissenting judge strongly disagreed. Characterizing the majority’s view as “depriving [the plaintiff] of her constitutionally guaranteed access to the courts,” the dissent argued the defense and the trial judge were out of line for even attempting to conduct additional discovery during what was supposed to be a presuit investigation. “Even if such discovery was available,” the dissent noted, the plaintiff was “justified in objecting to [the defense’s] misuse of the discovery process to go on a fishing expedition that exceeded what was relevant to determining [the expert’s] qualifications as a corroborating presuit expert witness.”

Get Help From a Florida Medical Malpractice Attorney

This case illustrates just how difficult it can be just to get a medical malpractice lawsuit before a Florida court. Even when a plaintiff complies with the law, aggressive lawyer by the other side may block a case from ever getting in front of a jury. That is why, if you have been a victim of a physician or hospital’s negligence, you need to work with an experienced Clearwater medical malpractice attorney who will fight to protect your rights. Contact the Law Office of Paul B. Genet, P.A., at (727) 538-8865, if you need to speak with a qualified medical malpractice lawyer today.

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