(1) After
the completion of presuit investigation by the parties
pursuant to s.
766.203 and any discovery pursuant to s.
766.106, any party may file a motion in the circuit
court requesting the court to determine whether the
opposing party’s claim or denial rests on a reasonable
basis.
1(2) If
the court finds that the notice of intent to initiate
litigation mailed by the claimant does not comply with
the reasonable investigation requirements of ss.
766.201-766.212,
including a review of the claim and a verified written
medical expert opinion by an expert witness as defined
in s.
766.202, or that the authorization accompanying the
notice of intent required under s.
766.1065 is not completed in good faith by the
claimant, the court shall dismiss the claim, and the
person who mailed such notice of intent, whether the
claimant or the claimant’s attorney, is personally
liable for all attorney’s fees and costs incurred during
the investigation and evaluation of the claim, including
the reasonable attorney’s fees and costs of the
defendant or the defendant’s insurer.
(3) If
the court finds that the response mailed by a defendant
rejecting the claim is not in compliance with the
reasonable investigation requirements of ss.
766.201-766.212,
including a review of the claim and a verified written
medical expert opinion by an expert witness as defined
in s.
766.202, the court shall strike the defendant’s
pleading. The person who mailed such response, whether
the defendant, the defendant’s insurer, or the
defendant’s attorney, shall be personally liable for all
attorney’s fees and costs incurred during the
investigation and evaluation of the claim, including the
reasonable attorney’s fees and costs of the claimant.
(4) If
the court finds that an attorney for the claimant mailed
notice of intent to initiate litigation without
reasonable investigation, or filed a medical negligence
claim without first mailing such notice of intent which
complies with the reasonable investigation requirements,
or if the court finds that an attorney for a defendant
mailed a response rejecting the claim without reasonable
investigation, the court shall submit its finding in the
matter to The Florida Bar for disciplinary review of the
attorney. Any attorney so reported three or more times
within a 5-year period shall be reported to a circuit
grievance committee acting under the jurisdiction of the
Supreme Court. If such committee finds probable cause to
believe that an attorney has violated this section, such
committee shall forward to the Supreme Court a copy of
its finding
(5)(a) If the court finds that the corroborating written medical expert opinion attached to any notice of claim or intent or to any response rejecting a claim lacked reasonable investigation or that the medical expert submitting the opinion did not meet the expert witness qualifications as set forth in s. 766.102(5), the court shall report the medical expert issuing such corroborating opinion to the Division of Medical Quality Assurance or its designee. If such medical expert is not a resident of the state, the division shall forward such report to the disciplining authority of that medical expert.
(b) The court shall refuse to consider the testimony or opinion attached to any notice of intent or to any response rejecting a claim of an expert who has been disqualified three times pursuant to this section.
History.—s.
53, ch. 88-1; s. 29, ch. 88-277; s. 35, ch. 91-110; s.
61, ch. 2003-416; s. 155, ch. 2004-5; s. 14, ch.
2011-233.
1Note.—Section
16, ch. 2011-233, provides that “[t]his act shall take
effect October 1, 2011, and applies to causes of action
accruing on or after that date.”
