We have all heard stories of physicians who learned that they were being sued with a hard knock on their front door by a process server . . . at the most inconvenient time, such as Thanksgiving dinner. Or physicians being served in a public place, such as a restaurant. Or their office, in front of colleagues and patients.
Thankfully, in Florida, a physician will know a lawsuit is coming well before a Complaint is served.
In this post, we will discuss the beginning of an arduous battle - the medical malpractice process in Florida, for physicians in private practice.
Side note: if you are hospital employee, risk management will be handling most of what I outlined below, and will contact you as needed.
Let’s begin.
In the Sunshine State, before a formal medical malpractice lawsuit can be initiated, a patient or the spouse must go through a “presuit” screening process. This is REQUIRED by the Florida Statutes.
So, what is the FIRST SIGN of an impending lawsuit?
✅ The physician’s office will get a request for copies of the patient’s records.
✅ The letter is usually FROM A LAWYER (sometimes from a patient).
✅ The letter WILL REFERENCE Florida Statute Sec. 766.204.
Receipt of such a letter will trigger your legal obligation to provide the records within 10 days (more on that later).
If you receive one of those, a lawsuit is likely on the horizon.
Below are actionable steps to take after you receive a request for patient’s records based on Sec. 766.204, Florida Statutes.
STEP #1: Take a deep breath. It’s going to be a marathon, not a sprint.
It can be weeks, months, or sometimes longer, until you get a Notice of Intent (NOI), which begin your informal investigation process. The NOI will describe the allegations (which may or may not be true) of the negligence against you.
STEP #2: You are going to be OK.
Remember lawsuits are common.
88% of physicians in high risk specialities will be sued by 45.
99% of physicians, regardless of their specialty, will be sued by 65.
Most physicians win at trial. Stats show that physicians win 80% - 90% of the time in cases where the evidence against the physician is weak, and 70% of the time in cases with "borderline" evidence.
Remember, an adverse outcome or a complication, DOES NOT MEAN that a physician was negligent.
STEP #3: Contact your medical malpractice insurance carrier for any specific instructions.
If you do not know who the carrier is, call your broker.
If all else fails, check the bank statements. You have been paying an insurance premium to someone..
TIP #1: Upon receipt of the Section. 766.204 letter, DO NOT MODIFY or SUPPLEMENT the PATIENT'S RECORDS IN ANY WAY.
If you believe an addendum to a record needs to be created, check with your insurance carrier BEFORE you make any modifications/additions. The carrier will determine whether to hire an attorney at this point of the process to address your concern, or wait until the NOI comes in (which is when attorneys usually get hired).
STEP #4 - VERY IMPORTANT - respond to the letter by providing the ENTIRE and COMPLETE copy of the patient's records WITHIN 10 DAYS.
If unsure what records to provide, contact your carrier.
TIP#2: You must provide the records EVEN IF the patient has an unpaid balance.
TIP #3: You are permitted to charge a reasonable copying fee for the records. Check out Florida Administrative Code 64B8-10.003.
And finally,
TIP #4: Not every letter from a lawyer means a lawsuit is coming. It is common for physicians to get letters from attorneys that ARE NOT indicative of an impending lawsuit. For example, attorneys frequently request records while representing a patient in unrelated matters (workers’ compensation claim, a slip and fall or auto accident).
💡The letter which signals that a lawsuit is likely "in the works," will be a request for records, referencing Sec. 766.204, Florida Statutes.
Repeat Step # 1.
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