Navigating the Presuit Process in Florida Dental Malpractice Claims

Introduction

Dental malpractice claims in Florida can be complex and challenging, and they require a thorough understanding of both the legal framework and the specific dental issues at hand. There’s a reason why many firms will not even look twice at a dental malpractice case. Dental malpractice cases are notoriously tough.

Our experienced Florida dental malpractice lawyers are dedicated to helping clients navigate the intricacies of dental malpractice cases and achieve the best possible outcomes. This article aims to provide a comprehensive overview of the steps involved in bringing a dental malpractice claim in Florida, including the presuit investigation process, notice of intent to initiate litigation requirements, and the presuit discovery process.

If a person can understand the essential components of a dental malpractice case in Florida, they can better prepare themselves for the challenges they may face in pursuing one of these cases. That’s the goal of this article: to help folks understand what a dental malpractice claim in Florida involves.

I. The Presuit Investigation Process: Investigating the Claimant’s Assertions of Dental Negligence

Before initiating a dental malpractice lawsuit in Florida, it is essential for the potential claimant to undergo a thorough presuit investigation. This process serves to evaluate the merit of the claim, and it helps to ensure that the legal action is based on a solid foundation of evidence, as well as on the opinion of a dental expert.

A presuit investigation generally involves the following steps:

1. Consultation With Legal Counsel: The first step in a presuit investigation is to consult with an experienced dental malpractice attorney who can guide the claimant through the process and assess the potential claim's viability.
2. Medical Records Review: The attorney will carefully review the claimant's medical records to identify any potential evidence of negligence and determine if the dentist, endodontist, oral surgeon, or some other dental professional failed to meet the standard of care.
3. Expert Medical Opinion: Obtaining an opinion and affidavit from a dental expert is a critical component of the presuit investigation process. The attorney will consult with the dental expert, and then the expert will review the case and provide an opinion as to whether the dentist’s actions (or inactions) constitute a breach of the standard of care and thus rise to the level of negligence.
4. Notice of Intent to Initiate Litigation: If the attorney and dental expert witness determine that the claimant’s dental malpractice claim has merit, Florida law requires the claimant to provide the dentist with a notice of intent to initiate litigation. The notice of intent must be served at least 90 days before filing the lawsuit and should include a detailed explanation of the alleged negligence, along with medical records obtained and the expert witness’s affidavit.
5. Mandatory Presuit Mediation: Florida law mandates that both parties participate in a presuit mediation in a dental malpractice case so that the parties can explore the possibility of resolving the case without going to court. If the parties can reach an agreement, the case may be settled without further litigation. However, if the presuit negotiations fail to produce a reasonable result, the claimant may be forced to proceed with filing the lawsuit.

II. The Notice of Intent in Florida

A critical component in Florida's dental malpractice presuit process is the notice of intent requirement. As we talked about, after completing a thorough presuit investigation, a potential claimant must send each prospective defendant a notice of intent to initiate litigation for dental malpractice. The purpose of the notice of intent is to inform the defendant of the alleged incident, allow for an investigation into the matter and encourage presuit settlement of the claim.

What is Proper Notice in a Florida Dental Malpractice Claim?

The notice requirement is outlined in Florida Statute 766.106(2), which provides the following:

(2) PRESUIT NOTICE.

(a) After completion of presuit investigation pursuant to s. 766.203(2) and before filing a complaint for medical negligence, a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence by at least one of the following verifiable means:

1. United States Postal Service certified mail, return receipt requested;
2. United States Postal Service mail with a tracking number;
3. An interstate commercial mail carrier or delivery service; or
4. Any person authorized by law to serve process.

As you can see from the statute above, attention should be paid to the method of serving the notice of intent. Under Florida law, the claimant should serve the notice of intent by certified mail with a hardcopy return receipt requested or by one of the other ways listed above.

Despite the specificity in the statute, however, Florida courts have allowed relatively flexible interpretations of these presuit notice requirements and have, at times, accepted some alternative methods of service, so long as these methods of service facilitate the orderly and prompt conduct of the screening and settlement process.

Just because Florida courts have been lenient in some cases does not mean a person should wing it when it comes to giving proper notice. This issue of “notice” is the source of a lot of litigation, as we will talk about more below. Thus, it’s always best to follow the statute precisely whenever possible. Here are some common issues that Florida courts have dealt with when it comes to proper notice under Florida Statute 766.

Does Service to a CURRENT Employer Constitute Service to a Defendant?

Yes, because there’s a “legal relationship” between a current employer and the employee.

Sometimes, you may run into a situation where the dentist is served with the Notice of Intent, but the employer, like a business entity or dental service organization, isn’t. Then, the employer may try to argue its way out of the case by saying it wasn’t properly served. Well, that argument won’t fly in Florida.

The Florida Supreme Court in Kukral v. Mekras addressed this issue of whether notice to one party in an action can serve as notice to another party in the same action and held that notice to a physician could operate as notice to the physician’s employer when a legal relationship exists between the two parties. See Kukral v. Mekras, 679 So. 2d 278, 285 (Fla. 1996).

Does Service to a PREVIOUS Employer Constitute Service to a Defendant?

Nope. As we’ll talk about below, there’s no “legal relationship” between a potential defendant and its former employer.

This leaves us wondering: What’s a “legal relationship?”

In Goldfarb v. Urciuoli, a claimant mailed a notice of intent to initiate litigation to a physician’s assistant’s former employer, a health clinic. The physician’s assistant argued that the notice to his former employer was insufficient to serve notice on him. The 1st District Court of Appeals agreed, stating that the physician’s assistant was not properly notified because he no longer had a “legal relationship” to the clinic. See Goldfarb v. Urciuoli, 858 So. 2d 397, 399 (Fla. 1st D.C.A. 2003).

Thus, in light of Kukral and Goldfarb, this issue of whether a “legal relationship” exists between two potential defendants is very important in deciding whether notice of one party constitutes notice to another party, and it often boils down to whether the person is a current or former employee.

Does Service of the Notice of Intent to a Dentist’s Relative Constitute Proper Notice to the Dentist?

Nope.

The Third District Court of Appeals dealt with this question in Ingersoll v. Hoffman, 561 So. 2d 324 (Fla. 3d D.C.A. 1990). In that case, the claimant served notice on Dr. W. Hoffman, when the claimant meant to serve notice on Dr. H. Hoffman. Even though Dr. W. Hoffman and Dr. H. Hoffman were brothers and even though they both were working at the same dental clinic and had the same insurance carrier, the court held that the claimant’s notice to Dr. W. Hoffman did not constitute proper notice on Dr. H. Hoffman.

What if a Letter is Sent to the Insurance Carrier?

The Second District Court of Appeals has held that a patient’s letter to his dentist’s insurance carrier did not constitute a proper notice where the letter was not sent by certified mail; it was not accompanied by an expert affidavit; and it requested negotiations outside of the Florida statutory requirements. See Wilkinson v. Golden, 630 So. 2d 1238, 1241 (Fla. 2d D.C.A. 1994).

In Wilkinson, the claimant sent the letter to the insurance carrier asking the insurance carrier to “informally handle” the malpractice claim. In response, the defense attorney for the insurance carrier sent a letter back that was titled “Response to Plaintiff’s Notice of Intent” a few weeks later. The issue before the court was whether the claimant improperly withheld information. However, the court specifically addressed the letter and found that it didn’t constitute proper notice and thus it didn’t trigger presuit discovery requirements.

What Must Be Included with the NOI?

According to Florida Statute 766.106(2)(c), notice to each prospective defendant must include the following:

• A list of all the medical providers claimant has seen for the injuries at issue and after suffering those injuries as a result of the alleged act of negligence;
• A list of medical providers claimant saw during the 2-year period before the alleged act of negligence;
• Copies of all of the medical records the claimant’s expert witness relied upon in signing the expert affidavit; and
• A form signed by the claimant that authorizes the release of claimant’s protected health information for purposes of investigating the claim.

Claimants should provide an expert affidavit outlining reasonable grounds to initiate a dental malpractice lawsuit with the notice of intent. However, Florida courts have, at times, taken a somewhat lenient approach in certain circumstances. Namely, Florida courts have allowed claimants to cure this deficiency so long as they provide the defense with an expert affidavit before the statute of limitations expires. See, e.g., Shands Teaching Hosp. v. Miller, 642 So. 2d 48 (Fla. 1st DCA 1994) (holding that a medical malpractice claimant is required to submit corroborating medical expert opinion in support of claim prior to expiration of statute of limitations); Miami Physical Therapy Assoc., Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994) (holding that notice required by section 766.106 must be filed within statute of limitations); Stein v. Feingold, 629 So. 2d 998 (Fla. 3d DCA 1993) (holding that affidavit of expert witness is timely filed when filed within statutory limitations period); Suarez v. St. Joseph's Hosp., Inc., 634 So. 2d 217 (Fla. 2d DCA 1994) (holding failure to verify medical opinion at time notice of intent to initiate litigation and complaint were filed is not fatal if compliance is secured prior to expiration of statute of limitations).

The Notice of Intent and the Statute of Limitations in Florida

The notice of intent tolls the applicable statute of limitations for a period of 90 days. During this time, the claimant can’t file a lawsuit, and the potential defendant, or its insurer, must conduct an investigation to determine whether the potential defendant committed dental negligence. The Florida Supreme Court has clarified that the 90-day presuit screening period starts from the date the putative defendant receives the notice of intent to initiate litigation. See Boyd v. Becker, 627 So. 2d 481 (Fla. 1993).

III. Presuit Discovery Process

During the 90-day period following the notice of intent, the potential defendant and its insurer, if any, must investigate, assess, and evaluate the dental negligence claim. Both the claimant and the potential defendant are required to cooperate in good faith during this presuit investigatory period to determine whether the defendant committed an act of negligence and whether that act of negligence caused harm to the claimant. Failure to conduct this presuit investigation in good faith could result in dismissal of claims or defenses.

As we discussed above, medical records are a crucial piece of the dental malpractice puzzle. Thus, the parties must turn over these records or suffer the consequences because neither party can reasonably conduct a presuit investigation without relevant medical records. Specifically, when one side requests medical records, the other side must provide those records within 10 business days. Both parties are subject to this presuit requirement, but most often it’s the defense that’s already in possession of the records and attempting to withhold them. Failure to comply with the 10-day timeframe can do away with the requirement that the other side obtain an expert witness affidavit.

Overall, informal discovery should occur during the presuit period, without the need for formal discovery processes. This may include obtaining unsworn statements, producing documents or items, and conducting physical and mental examinations.

Unsworn Statements

Unsworn statements can only be used for presuit screening purposes and are not admissible in a subsequent lawsuit. Additionally, an attorney may represent a party during the unsworn statement, and this process is subject to Fla. R. Civ. P. 1.310(d). This means that, if any abuses occur, such abuses may be considered as evidence of the abusing party's failure to comply with good faith requirements.

Documents

Upon request, the parties must produce documents or items within 20 days after receiving the request, and copies must be provided to all other parties. Noncompliance with this 20-day document production deadline indicates a failure to meet the good faith requirements.

Physical Examination

Although rare in the dental malpractice context, the defense can request a claimant to undergo a physical examination, which typically will be done only one time. The examination report can be used solely for presuit screening and is otherwise confidential. Keep in mind: The examining physician cannot testify about the examination in any subsequent civil action.

It is crucial for all parties involved to take the presuit discovery process seriously because, as we talked about, failure to comply could lead to dismissal of claims or defenses. This strict enforcement ensures the parties adhere to presuit discovery requirements and take it seriously. Ultimately, this helps to keep our court system free of cases that don’t belong in litigation.

IV. Response to Notice of Intent

Once the 90-day presuit investigation period ends, the potential defendant must provide a response to the claimant. This response usually will be one of the following:

• Rejection of the claim;
• Settlement offer;
• Admission of liability and propsed arbitration.

If the potential defendant does not respond to the notice of intent within the 90-day investigatory period, this constitutes a rejection of the claim.

Like we talked about above regarding the notice of intent, the expert witness plays a vital role in any response that rejects a claim. When mailing a response rejecting the claim, the potential defendant needs to include an expert affidavit that justifies and supports the denial of the claim.

If the potential defendant decides to present an offer of arbitration in a dental malpractice case, various aspects of the arbitration process come into play. We can’t get into arbitration in depth because a full analysis would require an entire article. However, a brief overview of the arbitration process in medical negligence claims is relevant to this article.

The arbitration statutes enforce a monetary cap on noneconomic damages in dental malpractice claims, regardless of whether the claimant accepts or rejects the offer to arbitrate. During arbitration, the arbitrator may award economic and noneconomic damages, but punitive damages are not available through arbitration.

V. Time Frame

When we’re thinking about the steps we talked about above, it is essential to keep in mind the time frame within which a claimant must file a dental malpractice lawsuit after the presuit investigation period ends. To prevent the statute of limitations from barring a claim, a claimant must bring a lawsuit within 60 days after the presuit investigatory period is over, or, alternatively, within the remainder of the time allowed by the statute of limitations, whichever is longer.

The 60-day timeclock starts after the earliest of the (A) expiration of 90 days after the date of receipt of the notice of intent to initiate litigation or (B) the claimant's receipt of the potential defendant’s written rejection of the claim. This time requirement has been litigated in recent years, but the current rules are as we discussed.

VI. Relevant Motions

Another issue is potential motions to be filed. Parties may file motions based on the reasonableness of the other party’s compliance with presuit investigations. Such a motion can be filed after parties complete the presuit investigatory period and the informal discovery process. These motions essentially ask the court to determine whether the opposing party's claim or denial is reasonable.

If the court finds that the claimant’s notice of intent to initiate litigation does not comply with the reasonable investigation requirements under Florida law, the court can dismiss the claim. Additionally, the attorney or claimant who sent notice of intent to initiate litigation may be liable for any attorney fees or costs that the potential defendants incurred while investigating and evaluating the claim if the court determines that the claim was unreasonable.

Potential defendants are held to a similar standard as the claimant. Namely, if the court finds that the potential defendant’s rejection of the claim does not comply with the reasonable investigation requirements, the court can strike the defendant's response, and the party responsible for the response can be held liable for the claimant’s attorney fees and costs.

The purpose of these types of motions is to ensure that parties conduct a thorough presuit investigation and act reasonably when dealing with dental malpractice claims to avoid clogging up our court system with cases that could have and should have been resolved before a lawsuit had to be filed. When you think of the law this way, with the goal in mind, these rules make more sense.