Affidavit Alleging Possible Causation Does Not Satisfy Medical Malpractice Presuit
Medical MalpracticeIn the case of David Howell and N.H. v. William Balchunas, MD, et al, Case Number 1D19-288 (Fla. 1st DCA December 17, 2019), Florida’s First DCA held that language in a pre-suit affidavit alleging that a radiology error “could have led,” “potentially leading to incorrect,” or “potentially caused permanent harm” were not sufficient to establish negligence for medical malpractice under Florida law.
What Went Wrong
Section 766.203(2), Fla. Stat. mandates that anyone filing a medical malpractice lawsuit must first conduct an investigation into whether there are “reasonable grounds” to believe that medical malpractice occurred. This includes both negligence and causation of an injury.
In this particular case, the pre-suit affidavit from the plaintiff’s expert described an incorrect reading of a radiology study (angiogram) but then went on to state that the alleged negligence “could have led,” was “potentially leading to incorrect” diagnoses, and that “such actions could have potentially caused permanent harm.”
The medical providers accused of malpractice challenged this affidavit as insufficient and the trial judge agreed. On appeal, the First DCA affirmed the trial judge citing Rell v. McCulla, 101 So.3d 878 (Fla. 2d DCA 2012).
Additionally, the case was dismissed with prejudice and the statute of limitation had run. Therefore, the plaintiff was never able to fix the problem and the case is over.
Lesson Learned
The case is yet another reminder that you must have all of the elements of your medical malpractice case established before you file your lawsuit. This is what the pre-suit process is supposed to protect against.
We don’t have good statistics on how frequently medical mistakes happen. However, a medical mistake does not automatically turn into malpractice simply because there was the potential for harm . In order to have a viable malpractice case, you must have both a medical error (that violates the generally accepted standard of care) and that medical error must be the cause of your injury or outcome. If anything is missing, then your attorney should inform of such.
Talk To A Lakeland Medical Malpractice Lawyer
If you have questions about a Florida medical malpractice case, you should contact Russo Law for a free consultation. We offer free consultations to help determine whether your case has legal merit. If your case is accepted, there are no attorney fees or costs unless we win. Call us today to schedule your free consultation with a Lakeland Medical Malpractice lawyer.
