The conventional wisdom among Florida’s health care providers is that a medical malpractice claim first begins with a prospective defendant’s receipt of a presuit notice of intent. In most cases, the presuit investigation of a medical malpractice claim started long before the prospective defendant received a notice of intent.Florida’s medical malpractice laws impose two requirements on claimants. First, prior to sending a notice of intent, a claimant must conduct a reasonable investigation to determine whether or not there are reasonable grounds to believe that a health care provider was negligent, and that the negligence resulted in an injury to the claimant. Second, the claimant must obtain a written opinion from a medical expert, confirming that reasonable grounds exist to initiate medical malpractice litigation.
The medical malpractice statutes require medical providers to supply copies of medical records within ten business days of receipt of a request for copies, or risk losing valuable defenses to a claim. Specifically, the failure to timely provide requested records, or charge a reasonable charge for the copies, may act as a waiver of the claimant’s requirement to provide a written medical expert opinion corroborating any claim made against the defendant. Consequently, health care providers should make certain that all requests for medical records are fulfilled within ten business days.
Florida courts have applied a relatively strict construction to the ten business day rule; in one case finding that providing records thirteen days after a request acted as a waiver. The courts have not ruled on the sufficiency of timely providing an invoice for the records, but, in the case of a pro se prison inmate who advised a defendant of his indigent status, and requested a lien be placed against his prison account for the charges, the court ruled that the defendant’s insistence on pre-payment before providing the records waived the plaintiff’s presuit affidavit requirement. While this case presented extraordinary circumstances, health care providers should consider providing the patient with their records, along with an invoice, rather than requiring pre-payment for the records.
