Pre-Litigation Requirements

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LNCtips.com: Pre-Litigation Requirements


When we think of medical malpractice lawsuits, we think of the litigation process.  This process starts when the Plaintiff attorney files a Complaint and continues until the case closes.  However, in  some states, certain statutory prerequisites must be met before attorneys can file a Complaint.  Let's look at some of those pre-litigation requirements.

Pre-litigation, pre-suit, and presuit are interchangeable terms that apply to the events that occur prior to the filing of a lawsuit.  While there are differences within the states, some of the common  pre-litigation elements include:

Semantics

- In the pre-litigation process, documents refer to the claim's initiator as the Claimant and the other persons and/or entities as Prospective Defendants. 

- In medical malpractice litigation, court documents refer to the person who initiates the lawsuit as the Plaintiff.  Court documents refer to the persons and/or entities being sued as Defendants.

- In everyday conversation, however, it's common to use the terms Plaintiff and Claimant interchangeably, and the term Defendant is used during both pre-litigation and litigation.

Expert Affidavit / Certificate of Merit.

- In many states prior to the initiation of a lawsuit, the Claimant certifies through an affidavit or certificate of merit that an expert has reviewed the facts of the case and that a lawsuit is justified.

- In other states, the Plaintiff's attorney files an affidavit of certificate of merit with the Complaint, if required.

Notice of Intent.  In some states, the Claimant must submit a Notice of Intent (NOI) to initiate litigation during the pre-litigation phase.  The NOI puts prospective defendants on notice that a Claimant intends to file a medical malpractice lawsuit.  For example, Florida statutes specify very detailed pre-litigation (called Presuit) requirements.  In Florida, the NOI must include an expert affidavit and:

- A list of the Claimant's health care providers seen within two years of the alleged negligence and providers who treated the Claimant for the alleged negligence subsequently.

- An authorization so that the prospective defendant(s) can obtain the Claimant's medical records related to the alleged negligence.

- Presuit discovery (also called informal discovery), which allows both the Claimant and Prospective Defendants the opportunity to take unsworn statements  Unsworn statements are like depositions but the're not taken under oath and can't be used in trial.  Presuit discovery also includes written questions (interrogatories), and production of documents.

Investigation Period. There is a defined period for pre-litigation investigation. For example, in Florida, the Prospective Defendant must finish its investigation to determine liability within 90 days of receiving a NOI.  On the other hand, during litigation, the discovery period is variable but often lasts for years.

Hearings.  Some states, such as Idaho, require that Claimants file a form and request pre-litigation hearings for their claims.

Panels.  Utah and at least 15 other states require Claimants and Prospective Defendants to have their cases reviewed by a pre-litigation panel.  In Utah, the panel is composed of an attorney, a physician, and a layperson.  The panel decides whether the claim is meritorious or not.

Mediations / Settlement Conferences.  Over half the states, including South Carolina, require alternative dispute resolutions measures such as mediation and settlement conferences.

How did these pre-litigation requirements develop?  In many cases, states enacted the requirements as part of tort reform to reduce perceived abuses of medical malpractice litigation.  In any case, it's important for the legal nurse consultant to understand not just the litigation process, but also pre-litigation requirements.  For a partial list of those requirements for each state, see the National Conference of State Legislatures.

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...Katy Jones