In Order to Sue for Medical Malpractice in Florida, You Must First Get a Medical Expert Opinion – Berry v. Padden

There are a number of procedural hoops that a plaintiff in a Florida medical malpractice lawsuit must jump through before bringing suit. As the state’s Fourth District Court of Appeal explains in Berry v. Padden, the failure to abide by these pre-suit rules can be fatal to a case.

Plaintiffs Elsie and Carl Berry filed suit against Defendant Dr. David Patten, asserting that he committed medical malpractice during Ms. Berry’s knee replacement surgery by improperly installing a tibial component that was too large. In support of their complaint, Plaintiffs attached a letter from an orthopedic surgeon – Dr. Christopher J. Cassels – which was not verified as sworn, notarized or otherwise at the time the complaint was filed. Plaintiffs filed a verified opinion from the orthopedic surgeon roughly six months later.

Florida law requires a person seeking to sue for medical negligence to corroborate the basis for the suit by submitting “a verified written medical expert opinion from a medical expert … at the time the notice of intent to initiate litigation is mailed.” Where a plaintiff fails to meet this requirement, a court is required to dismiss the claim.

The trial court granted Dr. Patten’s motion to dismiss the claim finding that the Berrys failed to provide a verified written medical expert opinion within the applicable statute of limitations, which expires two years from the date of the alleged negligence (with an additional 90 days of required pre-suit notice to the defendant and a possible 60-day extension).

The Fourth District affirmed the ruling on appeal. “The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations,” the court noted, citing the Second District’s 1998 decision in Maguire v. Nichols. Although the defect can be cured by filing a verified opinion before the statute of limitations expires, according to the court, a medical negligence case must be dismissed where the opinion is filed after the expiration date.

In this case, the parties don’t dispute that the first opinion letter Plaintiffs filed was not verified. Because a verified version was filed only after the statute of limitations had expired, the court found that the trial court properly dismissed the claim.

An experienced medical malpractice lawyer can assist a person seeking to sue a doctor or other healthcare provider for negligence in ensuring that the person complies with all of the pre-suit requisites and avoid dismissal of the case on these grounds.

The South Florida medical malpractice attorneys at Anidjar & Levine represent clients throughout the region, including in Boca Raton, Hialeah and Fort Lauderdale. Anidjar & Levine works on a contingency fee basis, which means they do not charge you any legal fees unless you win. If you have suffered injury because of another person’s negligence, call 800-747-3733 or complete the online Contact Us form to schedule a free consultation with an experienced personal injury attorney.

Related blog posts:

Florida Court Explains Medical Malpractice Notification Requirement – Galencare, Inc. v. Mosely

Medical Malpractice in Childbirth and the Limits of Florida’s NICA Coverage – Bennett v. St. Vincent’s Medical Center, Inc., et al

Capping Punitive Damages in Florida Medical Malpractice Cases – Estate of Michelle Evette McCall v. United States