How Florida Medical Malpractice Claims Work: The Presuit Process, the Medical Opinion and the Standard of Care

The process begins with the claimant’s own investigation. Before sending notice, “the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that” a defendant “was negligent in the care or treatment of the claimant” and that “[s]uch negligence resulted in injury to the claimant.” § 766.203(2), Fla. Stat.

“the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that”

§ 766.203(2), Florida Statutes

The law does not take the patient’s word or the lawyer’s. The reasonable grounds must be corroborated “by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed.” § 766.203(2). In practice, that means a qualified physician must review the records and sign a sworn opinion that the care fell below the standard and caused harm. Section 766.104 separately requires the attorney who files the eventual lawsuit to certify that a reasonable investigation gave rise to a good-faith belief that grounds exist.

“by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed.”

§ 766.203(2), Florida Statutes

Because the investigation takes time, the law provides a safety valve. On petition to the clerk of the court where suit will be filed, “an automatic 90-day extension of the statute of limitations shall be granted” to complete it, and “[n]o court order is required for the extension to be effective.” § 766.104(2). It cannot revive a claim that has already expired.

“an automatic 90-day extension of the statute of limitations shall be granted”

§ 766.104(2), Florida Statutes

Once the investigation supports a claim, and before filing suit, “a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence,” using a delivery method the statute allows. § 766.106(2)(a). The notice should include, if available, copies of the medical records the reviewing physician relied on and an executed authorization for release of protected health information in the form set out in section 766.1065. § 766.106(2)(c).

“a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence,”

§ 766.106(2)(a), Florida Statutes

After notice, everyone waits. “A suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant.” § 766.106(3)(a). During that period, the provider and its insurer must investigate the claim. The statute of limitations is tolled during the 90 days as to all prospective defendants. § 766.106(4).

“A suit may not be filed for a period of 90 days after notice is delivered to any prospective defendant.”

§ 766.106(3)(a), Florida Statutes

At the end of the period, the provider must respond. Under section 766.106(3)(b), the response may reject the claim, make a settlement offer, or make an offer to arbitrate in which liability is deemed admitted and arbitration is limited to damages. If the parties agree to extend the presuit period and negotiations later end, the claimant has “60 days or the remainder of the period of the statute of limitations, whichever is greater,” to file suit. § 766.106(4).

“60 days or the remainder of the period of the statute of limitations, whichever is greater,”

§ 766.106(4), Florida Statutes

The presuit period also includes informal discovery. Each side can request documents and statements, and in some circumstances unsworn statements and examinations, before a lawsuit exists. Cooperation matters: the statute provides consequences for a party that fails to participate in good faith.

At the center of every case is one question: did the provider meet the standard of care? Florida law gives the patient “the burden of proving by the greater weight of evidence” that the provider’s conduct “represented a breach of the prevailing professional standard of care for that health care provider.” § 766.102(1). The standard is “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Id.

“the burden of proving by the greater weight of evidence”

§ 766.102(1), Florida Statutes

Three points follow. First, the standard is not perfection. Doctors are not liable because a treatment did not work or a known risk occurred. Second, it is measured against similar providers: a surgeon is judged against reasonably prudent surgeons in the same field, not against a general idea of good medicine. Third, causation is separate. The patient must also show that the breach caused the injury, which is often the hardest part of a case involving a patient who was already sick.

Florida limits who may give opinions on the standard of care. Under section 766.102(5), the witness must be a licensed health care provider, and if the defendant is a specialist, the witness generally must have practiced or taught in the same specialty, or done related clinical research, within the three years before the incident. Similar rules apply to general practitioners and other providers. Finding the right reviewing physician is one of the most important early decisions in a case.

The general deadline is two years from the incident or from when it was, or should have been, discovered, with a four-year outer limit in most cases and longer periods only in cases of fraud or concealment or claims for young children. § 95.11(5)(c). The presuit tolling and the 90-day extension can add time, but they work only if used correctly and before the deadline passes.

Florida’s process rewards early, careful work. A strong case is built in the presuit stage: complete records, a well-chosen reviewing physician, a precise notice, and a clear theory of how the care fell short and what it caused. It also means a good lawyer will tell you early when a case should not go forward.

If you believe a medical error harmed you or a family member anywhere in Florida, call us at 305-748-3789 for a free, confidential review. Meetings by appointment only.