Evidentiary Hearing Required To Dismiss For MM Pre-Suit Violation

Medical Malpractice

In the case of Osceola Regional Hospital v. Calzada, Case Number 5D17-4097 (Fla. 5th DCA July 6, 2018), Florida’s Fifth DCA reminded medical malpractice litigants that judges are required to hold an evidentiary hearing and make evidentiary findings in cases involving an alleged pre-suit violation.

So What Happened?

The case opinion merely says that the hospital alleged that the Calzadas “failed to comply” with Florida medical malpractice pre-suit requirements regarding three nurses at the hospital. The judge held a hearing based on the argument of the lawyers rather than receiving evidence and testimony on the subject of the alleged pre-suit violation and the judge dismissed the case.

The Calzadas appealed and won because the judge did not make findings of fact based on evidence. However, that is not to say that upon a rehearing that judge may not make the necessary legal findings to support a dismissal.

What We Don’t Know Can Hurt Us

What we don’t know about this case is what the alleged pre-suit violation was because the Fifth DCA did not say in their opinion. It could be any number of things, including merely procedural items, that the plaintiff failed to comply with in Chapter 766, Fla. Stat.

Generally speaking, before a medical malpractice plaintiff can file a lawsuit, the plaintiff must send a pre-suit notice of intent letter to the medical provider (indicating that you are going to sue them) according section 766.106, Fla. Stat.

Before a medical malpractice plaintiff can send such a “notice of intent to sue” letter to a medical provider, the plaintiff must have completed a “reasonable investigation” according section 766.203, Fla. Stat. and provide a verified written medical opinion from a ‘qualified’ medical expert (see 766.202) stating that there is reasonable grounds to support a claim of medical negligence.

To fully comply with Florida’s pre-suit medical malpractice requirements, your attorney should carefully review several statutes and should be aware of cases interpreting those statutes. Unfortunately, this is something that is nearly impossible to do on your own and is often difficult for an attorney who has no experience filing a lawsuit previously.

Regardless of whether the Calzadas get dismissed upon rehearing, this case is a reminder that we must always do our due diligence with respect to these claims.