Florida law can make it extremely difficult for victims of medical malpractice just to get their day in court against a negligent health care provider. Among other legal barriers, Florida requires victims obtain an “expert” affidavit from a qualified health care provider before they can even file a malpractice lawsuit. In theory, this affidavit requirement is supposed to keep frivolous malpractice claims out of court. But in practice, it is often a trap that can add to the suffering of a victim and their families.
Dispute Over Expert’s Qualifications Leads to $6,700 Penalty
Not only can Florida’s affidavit requirement deny a plaintiff his or her constitutional right to access the courts; a victim may also be forced to pay the defendant’s legal fees and costs. A recent decision by a state appeals court in Miami illustrates how harsh and unforgiving the law can be on this point.
This particular case has been pending before the Florida courts for nearly eight years. In 2007, the victim died of a bacterial infection. The victim’s estate and heirs filed a medical malpractice lawsuit against her doctor. The plaintiffs served notice of their intent as required by Florida law, which included an expert affidavit.
The defendant challenged the expert’s qualifications. Specifically, the defendant noted that he was a “board certified family physician” while the plaintiff’s expert was a “board certified emergency physician.” Florida’s medical malpractice law requires the plaintiff present an affidavit from “a health care provider trained in the same or similar specialty as the prospective defendant.” In 2014, the Florida Third District Court of Appeal sided with the defendant, affirming a lower court’s determination that the plaintiff’s expert was “unqualified to act as an expert witness” in this case. Accordingly, the appeals court said there was no choice but to dismiss the plaintiffs’ lawsuit.
But that was not the end of the matter. The defendant then demanded the victim’s attorney pay his legal fees. In a second opinion issued on July 6 of this year, the Third Circuit agreed and ordered the attorney to pay approximately $6,700 “in fees and costs the defense was forced to incur in responding to the plaintiff’s deficient notice of intent.”
The Third District explained Florida law holds that a plaintiff or attorney who fails to “comply with the reasonable investigation requirements” can be held personally liable for a defendant’s legal costs. Here, the Third District said, “A party’s failure to provide a corroborating affidavit from a qualified medical expert constitutes prima facie evidence of lack of a reasonable basis to bring suit.”
Do You Need to Speak With a Florida Medical Malpractice Lawyer?
Cases like this emphasize the difficulty medical malpractice victims face in seeking justice. Even in the best of circumstances a case make take several years—and multiple appeals—before a victim sees any compensation. That is why if you or a family member have been seriously injured due to a health care provider’s negligence, it is essential you seek advice and assistance from an experienced Clearwater medical malpractice attorney. Contact the Law Office of Paul B. Genet, P.A., at (727) 538-8865 if you need to speak with an attorney right away.