Medical malpractice lawsuits are procedurally demanding cases that require strict adherence to the statutes that govern this area of law. Ignore one requirement and you can jeopardize your entire case. This is exactly what happened in Berry v. Padden, a 2012 case out of the Fourth District Court of Appeal.
Berry v. Padden: A Case of Calendar Mismanagement
In Berry, the plaintiffs – a husband and wife – sued the wife’s former doctor, alleging that he committed medical malpractice when he placed an improperly sized tibia replacement part in the wife’s knee during a corrective surgery. Florida law requires medical malpractice plaintiffs to support their complaint with a “verified written medical expert opinion.” Plaintiffs must serve this opinion, along with a notice of their intent to commence litigation, on the intended defendant at least 90 days before they file the complaint. This expert opinion must also come from a medical expert with training, education, or expertise in the same field as the physician who allegedly engaged in malpractice.
The problem in the Berry case is that the plaintiffs’ written expert opinion was not verified at the time they served it. Essentially, the expert opinion must take the form of an affidavit in which the expert physician swears that he or she has reviewed the plaintiff’s medical records and believes there is sufficient cause to proceed with a medical malpractice lawsuit. Instead of an affidavit or a notarized, sworn statement, the Berry plaintiffs submitted an unverified letter. Although the court gave them an opportunity to correct their error within the applicable statute of limitation, they failed to submit a corrected version of their expert’s opinion until six months later – well after the 90-day deadline.
The Berry case is a good example of why it’s important to work with a knowledgeable medical malpractice attorney. If you suspect your injury was caused by the negligent conduct of a hospital, doctor, or other health care professional, it’s critical to speak to an attorney as soon as possible. There are strict time limits for filing a claim and, as the Berry case demonstrates, the law doesn’t leave much wiggle room when it comes to the requirements for bringing a lawsuit. To speak to an attorney today about your case, call our office at 727-821-1500.