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What Are The 9 Steps In Determining Whether A Potential Medical Malpractice Case Is Worthy Of Pursuing Legally?

First, it is important to realize that most incidents of medical malpractice go without any legal action. Many events occur, and patients or their facilities never realize that their bad results were related to potential medical malpractice. Other cases do get the attention of the patient or the patient’s family but do not warrant a medical malpractice action. Then there are a select number of cases where there is medical malpractice AND the case justifies the pursuit of a medical malpractice lawsuit.

This discussion will center on the process that Zarzaur Law will utilize in evaluating each and every potential medical malpractice action. Initially, it should be understood that Florida’s medical malpractice laws greatly favor medical providers. The statutes dealing with bringing medical malpractice lawsuits have been amended several times over the years to erect more and more barriers to suing medical providers. Each one of these barriers has not only made it more complex to bring legal action but also increased the costs associated with prosecuting a medical malpractice case.

Unlike in every other legal case in Florida, healthcare workers being sued for malpractice enjoy greater protection from suit. Since the system is basically stacked against our clients/patient victims, our evaluation is measured against the backdrop that will advantage the healthcare worker. It is not a level playing field, and we have to factor this bias into the evaluation from the start.

Also, it is worth mentioning that, all else being equal (which it is not given the discussion above), when you walk into a courtroom, doctors, nurses, and healthcare workers already get the benefit of the doubt. We tell clients that, as a plaintiff seeking money damages, you are immediately viewed as a suspect. The opposite is also true for police officers, doctors, nurses, and other healthcare workers. Potential jurors view each of those professions with huge respect and admiration. All of these biases have to be considered by you and your law firm from the start of the process. We are not evaluating a case in a vacuum; we are evaluating your case in the jurisdiction in which it will be litigated.

Now, let’s talk about the steps in the process of a medical malpractice evaluation.

There are nine basic steps to evaluating a Florida Medical Malpractice case:

1. Obtain Medical Records:

This sounds simple. It is not. Many patients have some records when they first meet with us. They rarely have all of the records. These days, medical records are mostly kept in an electronic format known as an EMR, or electronic medical record. The hospitals do not produce the “audit trail” for any patient when they provide copies of medical records. The audit trail captures all of the touches to the file and documents any changes made to the EMR, while also recording the time and identity of the revisions. Generally, this part of the process takes between 30-60 days to complete in total. Our firm is able to utilize certain Florida Medical Malpractice statutes that require a 10 day turn-around and if the provider does not comply, then it relieves the compliance with other requirements. Many providers do not comply with the 10-day statute for providing records, but we still need the records for the case. So, we generally have to wait until they are provided. This usually takes up to 60 days to make sure we have ALL of the medical records. As you can imagine, it is invaluable to have a board-certified internal medicine doctor on staff who can review these records as they are provided to make certain that we are not being provided incomplete records.

2. Complete A Legal And Medical Review

Once all of the medical records and the related audit trail are provided, the medical and legal review can start.  First, the medical review takes place with the use of our full-time medical doctor staff member. This means that our firm can review a potential medical malpractice case as soon as the records are received. So, usually within the first 75 days, we will have the medical records in the office and then have them reviewed by our physician. This review will provide us with all of the information that we suspected since the first discussion with you about your case.

Dr. Malone will review these records and will meet with one of our lawyers to discuss the medical issues involved. At that point, Mr. Zarzaur will be brought into the review, and there will be a discussion of the medical mistakes, the medical defenses, and other legal issues that could be related to the fact situation. This part of the process only takes a few days to finalize. The longest part of the review process is not really the review. Once the review is completed and if there is a decision to continue with the case, we have to determine which providers or facilities will be the primary targets of the case.

Determining the targets of the case is critical at this point since, under Florida Medical Malpractice law, a case must employ experts in each medical field that is at issue. The Florida Medical Malpractice law requires that each expert hired and used by a Plaintiff must have similar credentials to the target of the case. So, if you are going after a General Surgeon who is board-certified, then your expert has to be a General Surgeon who is board-certified.

So, we not only research the medical issues involved, but we also have to dive into the credentials of each target in the case to ensure we have a correct statement of their credentials. We then must seek out experts that will meet the standards of Florida Medical Malpractice law. If they agree to serve as experts in the case, we can then move to the next step. This entire review process usually takes only a week or two to complete.

3. Gather Expert Opinions And Have Them Sign An Expert Affidavit For The Presuit Process.

As discussed above, once we have identified a qualified expert for each target of the medical malpractice case, we then contact the expert and make arrangements for that expert to review the medical records. The expert will generally review the medical records and then follow that up with a call between our firm and the expert. This call is attended by our firm physician and Mr. Zarzaur. During this call, the expert will explain whether they feel that the conduct as reflected in the records rises to the level of medical negligence.

If the expert does conclude that the conduct amounts to negligence, then the expert will be asked to draft a statement or a Presuit affidavit, aka a corroborating medical opinion. This sworn statement is required by Florida Medical Malpractice law unless the law exempts this requirement. If the expert does not feel that the conduct in the records does not amount to medical negligence or that the negligence was not the medical cause of the injury or death, then the case is over.

We will inform you as soon as possible that our investigation is complete and the expert does not feel that the matter should be pursued. As you can imagine, speaking with these experts by phone helps immensely when you have a medical doctor at the law firm. The medical doctor experts really like to speak with “one of their own” when a law firm is calling.

4. Prepare And Serve The Notice Of Intention To Sue

Once we have the medical opinion affidavit(s), we can now draft the notice of intent to sue. This notice is required to have information and if anything is omitted, the case could be dismissed. It is critical that this notice of intent and its attachments be drafted exactly as required by the Florida Medical Malpractice Act. If the law firm you are considering has not performed this function on a regular basis, it is a potential minefield of mistakes for the inexperienced.

The notice of intent also has to include medical authorizations that are specific to this process and executed by the client. The document must also include the names of providers that have rendered care to the client or decedent for a period of 10 years. Then, of course, the expert affidavit (s) must also be included. The package must be sent out via certified mail, and proof of delivery must be retained for the file.

Once this notice of intent is served, the Presuit period has begun. The defendant has 60 days from the receipt of the notice of intent to respond. Keep in mind that the parties can voluntarily extend the time of the presuit period, so sometimes the process could take longer.

5. Presuit Discovery

Discovery is basically the trading of information. Discovery is typical once a lawsuit is filed, but Florida’s Medical Malpractice Act allows for limited discovery even before the medical malpractice lawsuit is filed. This is called the “presuit discovery process.” Each party can ask for documents and can also ask that each party provide informal statements. Defendants are usually asked to take the informal (unsworn) statement of the plaintiff or personal representative of the plaintiff’s estate. They do this for two reasons.

First, they do this because they can and the law allows it. Second, they want to know how credible the client will be once the case is filed. The legal reason that the Florida Medical Malpractice Act allowed for Presuit discovery was to encourage an early resolution of the case.

The fact is that most cases do not result in early settlements despite the exchange of information at this early stage. We still must comply with the legal obligation. If you don’t, then your case can be dismissed for failure to comply with the Florida Medical Malpractice Act.

6. Presuit Process Concludes

The Defendants can conduct their own review of the Plaintiff’s notice of intent and affidavits, and then meet and consult with their own experts. The Florida Medical Malpractice Act allows for the Defendant’s to admit negligence. If they admit to a medical mistake, then the defendant is entitled to a cap on damages for pain and suffering. This cap is typically $350,000.00 on those damages.

This means that if the defendant admits negligence during the Presuit process, they will gain the use of a damage cap on pain and suffering damages. This admission will also include a demand for arbitration, which means that they also want to meet and discuss a full resolution of all claims before suit is filed. If the informal settlement is not successful in resolving all issues, then the plaintiff can proceed with litigation, but since the defendant admitted liability, they get to take advantage of the damage cap even in the lawsuit.

Defendants do not admit negligence often, so the most likely conclusion to the Presuit process is their denial of liability. This denial is due within 90 days of the service of the notice of intent unless there is some agreement to extend it. If the defendant does not answer within 90 days, then the matter is deemed denied. This denial or the expiration of the pursuit time period gives clearance to the plaintiff to file the medical malpractice lawsuit.

7. Lawsuit And Discovery Draft And File

Now the case can finally be filed. If there was a mistake made during presuit, the defendant may file a motion to dismiss the lawsuit, citing the deficiencies in the presuit period. This is why it is vital for lawyers to make certain that they take care to comply with the presuit statutes set out in the Florida Medical Malpractice Act. The lawsuit should be specific enough to explain the basis of the negligence, but not so specific as to prevent you from expanding the theory upon learning more from the discovery in the case.

The written discovery requests to the health care providers and facilities will include much of the EMR and the meta data, including the audit trail. Medical records are virtually all kept electronically these days. This means that each note in the record will have a track record showing the exact date and time of each entry as well as a username for such an entry. This is obviously a critical element since the timing of entries is typically related to the quality of the medical care provided.

8. Medical Malpractice Depositions

Perhaps the most effective tool in the litigation process is the witness deposition. Lawyers cannot control their witnesses in the same way that they can with discovery papers. A witness is on their own in a sworn deposition and they are subject to aggressive questioning. Most of the defendant healthcare providers have rarely, if ever, been questioned about their actions regarding anything in their adult life. Some of them do not handle such examinations well. As you can imagine, many defendant healthcare providers treat these cases and the lawyers that bring them as a nuisance to their existence. They feel above this system of justice and that their judgment should never be questioned. This trait is not really compatible with our system of justice since it usually comes across as aloof or as if the witness is either hiding something or both.

These depositions help level the playing field. Again, having a board-certified physician sitting across the table from the target physician is immensely helpful to our clients. Doctors typically engage in what I will call “jargon subterfuge.” When they feel a tight spot coming in a deposition, they will sprinkle some medical jargon into a sentence, attempting to justify their action or inaction. This subterfuge may sound good to the average person, but when a fellow doctor is in the room, this type of subterfuge stinks up the room. Most lawyers do not have their experts at depositions, and most do not have full-time physicians on staff. Dr. Malone attends all depositions for our medical malpractice clients, and the target doctors know that they will be sitting at a table with not only an experienced litigator but also a board-certified internal medicine physician. This fact has made the medical malpractice depositions in our firm much more productive for our clients.

The same is true for the deposition of the medical experts for the defendants. They often come up with some ridiculous defenses that involve both logical and medical gymnastics. These experts have a more difficult task of coming up with illogical medical defenses when they can be shot down in real time by a team composed of an experienced physician and lawyer.

The depositions in a Florida Medical Malpractice case can last for years. This portion of the case takes time because it generally involves coordinating schedules between several parties and their lawyers. Further, it is imperative that all fact witnesses and parties be deposed first, and then you can move on to the expert depositions.

9. Mediation And Trial

Once the discovery is completed or is completed enough so that each party has the ability to see what the other party has as evidence of their claim or defense, the parties can meet and discuss the possibility of settlement of the claims. This meeting is called mediation. It is an informal meeting of the parties and their lawyers, usually at a neutral third-party lawyer’s office. This neutral lawyer is called a mediator. He/She serves as an unconnected lawyer who can assist in trying to find out if the parties have enough common ground on the case that would allow for some amount of money that both could agree to settle the claims.

Mediation is successful about 60% to 70% of the time in Florida Medical Malpractice cases. All parties are required to participate in mediation since the judge orders the participation. You will be provided preparation before the mediation, but you will have no active role in the process other than evaluating the other party’s arguments and determining whether the offers that they are making are reasonable enough to provide counter demands to them.

If the case is not settled at mediation and then not settled between mediation and trial, then the case will go to trial. If the case goes to trial, we will be calling all of the witnesses that have been deposed in the case as witnesses or cross-examining them as defense witnesses. Again, our firm will meet with you for a few days to prepare you for the trial.

As you can see, the Florida Medical Malpractice process is not a quick and simple process. It is critical that the law firm and lawyer handling your Florida medical malpractice case not only have experience in this area, but also have the resources and staff to handle this type of case. Zarzaur Law has purposely created a firm that is best suited for medical malpractice cases. If you or a loved one has been the victim of medical malpractice and would like a free consultation, please contact us at or call 855HireJoe.


Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit