Presuit: What Happens Next?

The statutory scheme for presuit notice provisions and presuit investigation in the nursing home setting is set forth in detail in §400.0233, Fla. Stat., and for ALFs, in §429.293, Fla. Stat. After appropriate investigation, the prosecuting attorney must provide the long-term care facility and each prospective defendant with a Notice Of Intent (NOI) letter, via certified mail. While an affidavit from an expert is not a required attachment, the attorney must certify in the letter that he or she has conducted a “reasonable investigation [that] gave rise to a good faith belief that grounds exist for an action against each prospective defendant.” §400.0233(2), Fla. Stat. The NOI letter triggers a 75-day pre-suit screening period, the purpose of which is to gather records and the mutual exchange and review of pertinent information. The prospective parties are permitted to take unsworn statements and request and exchange documents and things during the pendency of the presuit screening period. In reality however, this presuit screening period lacks significant value absent defendant cooperation, as the statute has little-to-no penalty for noncompliance in the event the nursing home does not meaningfully participate or cooperate. At the end of the 75-day period, the nursing home shall respond and either admit or deny the claims (the experience of the author, however, is that the claims are always denied). A prospective defendant’s non-response is deemed a denial of the claim.