Introduction
If you or a loved one was harmed by possible medical negligence in Florida, you might be researching how to start a lawsuit. In Florida, you cannot simply file a medical malpractice suit immediately. State law imposes a mandatory pre suit notice and investigation process that must be followed first. These pre suit requirements, set out in Florida Statutes §§ 766.106 and 766.203, are designed to ensure claims have merit and encourage early resolution before a case goes to court.
In other words, Florida’s malpractice laws aim to “weed out” unsupported or frivolous cases by requiring an expert review and giving the healthcare provider a chance to respond before litigation. This explainer will walk you through each step of Florida’s pre suit process from the initial investigation and expert affidavit, through the notice of intent and 90 day waiting period (with informal discovery), to the impact on filing a lawsuit. We’ll also clarify who must comply with these rules and the consequences for not following them, all in plain language.
What Are Florida’s Pre-Suit Requirements in Medical Malpractice?
Florida’s pre suit requirements refer to a series of steps that a medical malpractice claimant and the prospective defendant must complete before a lawsuit can be filed. These steps are mandated by the Florida Comprehensive Medical Malpractice Reform Act, particularly Fla. Stat. § 766.106 (governing pre suit notice, investigation period, and discovery) and Fla. Stat. § 766.203 (requiring pre suit investigations by both sides). In a nutshell, an injured patient (claimant) must:
- Conduct a reasonable investigation into the claim’s merits
- Obtain a written opinion from a qualified medical expert corroborating that the claim has a reasonable basis
- Serve a formal Notice of Intent to Initiate Litigation on each prospective defendant (doctor, hospital, etc.) before filing suit
Once the notice is served, the healthcare provider (prospective defendant) gets 90 days to investigate and respond before any lawsuit can proceed. During this 90 day pre suit period, both sides can use informal discovery tools (like exchanging records or taking unsworn statements) to evaluate the claim. At the end of the period, the provider must either reject the claim, offer a settlement, or propose arbitration on damages. These steps significantly impact the timing of a lawsuit (by tolling the statute of limitations and imposing waiting periods) and the viability of the case, since failure to comply can lead to dismissal of the claim. Below, we break down each step in detail.
Step 1: Claimant’s Pre-Suit Investigation and Expert Affidavit
Before suing, an injured patient (the claimant) and their attorney must conduct a “reasonable investigation” into the claim. Florida law requires the claimant to ascertain that there are reasonable grounds to believe the medical provider was negligent in their care or treatment, and that this negligence caused the patient’s injury. In practical terms, this means the attorney will gather relevant medical records and consult an independent medical expert (usually a doctor in the same field as the provider in question) to review the case.
If the facts appear to support a claim of malpractice, the expert must provide a written opinion (often under oath, hence an “affidavit”) verifying that reasonable grounds exist. This “verified written medical expert opinion” is essentially a letter or affidavit from a qualified expert stating that they believe the provider’s care fell below the standard and injured the patient. It serves to corroborate that the claim is not frivolous but backed by professional judgment.
Key points about the expert opinion requirement:
The expert must be a health professional with appropriate qualifications generally, a practitioner with a valid license and clinical experience in the same or similar specialty as the prospective defendant. (Florida law has specific criteria in §766.202 and §766.102 for who can testify as a medical expert, to ensure they have relevant expertise.)
The expert’s written statement does not need to be extremely detailed. It doesn’t have to lay out the entire case or exactly how the defendant was negligent. It simply must confirm that after review, the expert believes there is a good faith basis for a negligence claim enough to show the claim is justified and not filed in bad faith.
Timing:
The claimant’s expert opinion must be obtained before sending the formal notice of intent to the defendant. In fact, Florida Statutes require that this corroborating expert opinion be ready at the time the notice is mailed to the prospective defendant. (Typically, the written opinion is attached to or enclosed with the notice letter, or at least offered to be provided upon request.)
Example:
Imagine a patient suffered complications after a surgical procedure and suspects the surgeon made an error. Before the patient’s lawyer can sue the surgeon, the lawyer will collect the patient’s medical records (operative reports, follow up records, etc.) and likely consult another surgeon or qualified physician. That independent doctor will review the facts to see if the original surgeon likely deviated from the standard of care (e.g. a surgical mistake) and caused the injury.
If so, the doctor signs a “good faith” affidavit stating that, in their professional opinion, the claim has merit. Only with that expert backing can the patient move to the next step. If the investigation finds no reasonable grounds for instance, if every consulted expert says the outcome was a known complication, not malpractice then a lawsuit should not be pursued under these rules.
Note:
Florida courts prefer that cases be decided on their merits rather than technicalities, so they have given some leeway on the expert affidavit timing. For example, if a claimant forgets to include the expert’s affidavit with the initial notice, courts have allowed it to be corrected later as long as it’s provided before the statute of limitations expires. However, this is not a step to take lightly omitting the expert corroboration can jeopardize the case if not fixed in time. A malpractice lawsuit filed without this pre suit expert support can be dismissed by the court for not meeting the presuit investigation requirements.
Step 2: Serving the Notice of Intent to Initiate Litigation
Once the claimant has their expert’s confirmation and a good faith belief the claim is valid, the next step is to formally put the healthcare provider on notice. Before any lawsuit is filed, Florida Statute § 766.106(2) requires the claimant to serve each prospective defendant with a “Notice of Intent to Initiate Litigation for Medical Negligence.” This is essentially a pre suit notice letter sent by certified mail, return receipt requested (or a similarly reliable method) to the doctor, hospital, or other provider you plan to sue. The notice of intent is a critical document it alerts the medical provider and their insurer that you intend to file a malpractice claim, and it triggers a 90 day evaluation period (during which you cannot file the lawsuit) as described in the next section.
What must be included in the Notice of Intent:
Florida law spells out certain supporting information and documents that should accompany the notice to demonstrate the claim’s legitimacy. A proper Notice of Intent package typically includes:
Basic information about the claim:
A brief description or summary of the alleged negligence (what went wrong) and the resulting injuries or harm to the patient. (While the statute doesn’t explicitly list a narrative, in practice the letter should outline the facts so the provider understands the nature of the claim.)
The claimant attorney’s certification of a good faith basis:
Often the notice will contain or attach a certificate from the claimant’s lawyer affirming that a reasonable investigation has been done and that there are grounds for a malpractice claim (as required by Fla. Stat. § 766.203 and § 766.104). This assures the defendant that the claimant isn’t suing on a whim an attorney and expert have vetted the case.
A verified medical expert opinion supporting the claim:
The signed statement from the medical expert who reviewed the case and found negligence, as discussed above. This may be included with the notice or provided to the defense upon request, but it must corroborate the claim’s merits at the time of mailing. Without this, the notice is defective. (For example, an attached expert affidavit letter might say: “Dr. X, a board certified surgeon, has reviewed the records and opines that Dr. Y negligently perforated the patient’s organ during surgery, causing complications.”)
List of providers and medical history:
A list of all known healthcare providers the patient saw for the injuries after the alleged malpractice, as well as those who treated or evaluated the patient in the two years prior to the incident. This gives the defendant context about other treatments or conditions.
Copies of the patient’s relevant medical records:
That the presuit expert relied upon in forming their opinion. For instance, if the expert reviewed certain hospital charts, test results, or surgical reports, those records should be shared with the prospective defendant. Providing these records helps the defense verify the basis of the claim.
An executed authorization form:
For the release of the patient’s health information. Florida Statute § 766.1065 provides a specific medical authorization form that the claimant must sign and include. This form allows the prospective defendant to obtain the patient’s medical records (including from other providers) relevant to the matter, in compliance with HIPAA. Essentially, it lets the defense gather records to investigate the claim during presuit.
By including all of the above, the notice signals that the claim is serious and substantiated by evidence and expert review. It gives the healthcare provider the information needed to start evaluating the case.
Why this notice matters:
The Notice of Intent is not a mere formality it is a mandatory condition before suing. Skipping this step or serving a grossly deficient notice will “shut down” the case regardless of its merits. In fact, Florida law states that failing to provide this presuit notice and the required investigation materials is grounds for dismissal of any lawsuit that follows.
For example, if a patient files a malpractice complaint in court without ever sending a proper notice of intent to the doctor, the court will dismiss the case for failure to satisfy presuit requirements. Even a late notice (after filing suit) isn’t sufficient the process must be done before filing. Therefore, claimants and attorneys must be diligent in preparing and mailing the notice in accordance with §766.106.
Example:
A patient believes a radiologist misread an MRI, causing a delayed cancer diagnosis. The patient’s lawyer completes a presuit investigation and an oncologist provides an expert opinion that the radiologist’s error fell below the standard of care. The lawyer then drafts a Notice of Intent letter to the radiologist (and the radiology clinic), summarizing the claim e.g., “On [date], Dr. R failed to identify a 3cm mass on Patient’s MRI, which led to a 6 month delay in cancer treatment and worsened prognosis.”
The letter attaches the oncologist’s signed opinion, lists the patient’s other doctors before and after the misdiagnosis, encloses copies of the MRI report and related records, and includes a signed authorization allowing Dr. R to obtain the patient’s medical records. This packet is sent via certified mail to Dr. R’s office and the clinic’s registered agent. Upon mailing this Notice of Intent, the 90 day clock starts (and the patient cannot file a lawsuit until that clock expires or the doctor responds, as explained next).
Step 3: The 90-Day Pre-Suit Screening Period (No-Filing Interval and Tolling)
After the Notice of Intent is served, Florida law imposes a 90 day waiting period before a medical malpractice lawsuit can be filed in court. This is often called the presuit screening period or presuit investigation period. The clock begins running from the date the prospective defendant receives the notice (as clarified by case law). During these 90 days, the claimant is barred from filing suit, and the statute of limitations is tolled (paused) for all potential defendants. In essence, everything is put on hold to give the healthcare provider (and their insurer) time to evaluate the claim without the pressure of immediate litigation.
What the prospective defendant (and their insurer) must do in these 90 days:
The healthcare provider or their malpractice insurance carrier is required by §766.106(3) to conduct a presuit investigation of its own. They must review the claim to determine if there are reasonable grounds to believe the provider was actually negligent and caused the injury. This typically involves steps such as:
Internal review of records and facts
For example, the hospital’s risk management team or the insurer’s claims adjuster will analyze the medical records, interview the insured doctor or staff involved, etc.
Consulting experts
The defense may hire its own medical expert to review the case and see if they agree that malpractice occurred or not.
Forming a review panel
The statute even suggests the insurer may convene a panel (including an attorney experienced in med mal, a health care provider in the same specialty, and a claims adjuster) to evaluate the claim in a balanced way. Alternatively, the insurer might involve a local medical society’s review committee. These options are meant to fairly and promptly assess the claim.
Good faith cooperation by both sides:
The law expects both the claimant and the prospective defendant to cooperate with each other’s investigation “in good faith”. This means the patient and their lawyer should timely provide requested information (medical records, authorizations, etc.), and the provider/insurer should actively and honestly evaluate the claim.
An “unreasonable failure to comply” with this duty by either party can lead to sanctions, including possible dismissal of that party’s claims or defenses. For instance, if the insurer asks the claimant to appear before a pre suit screening panel or to undergo a physical examination, the claimant must make a reasonable effort to do so. Likewise, the provider should make requested documents available. Non cooperation undermines the presuit process and is punishable (more on sanctions in a later section).
During this 90 day window, the statute of limitations is on pause for the claim. You still must have sent the initial notice within the original limitations period, but the clock stops ticking for these 90 days (and any agreed extensions). According to Fla. Stat. § 766.106(4), once the 90 days end (or if the provider finishes sooner and closes the investigation), the claimant will have at least 60 days (or the remaining statute of limitations time, whichever is greater) to file the lawsuit after the presuit period.
This ensures that the mandatory waiting period doesn’t eat up someone’s entire window to sue you get an extension so you won’t be timed out due to the wait. For example, if a patient’s statute of limitations was set to expire during the presuit investigation, the law gives an extra 60 days after the 90 day period (minimum) to file the complaint in court.
The provider’s response options by day 90:
By the end of the 90 day presuit period (or earlier, if they finish the review), the prospective defendant must deliver one of three responses in writing to the claimant (via certified mail):
- Reject the claim essentially deny liability and refuse to settle.
- Make a settlement offer offer a specific sum of money or other terms to resolve the claim out of court.
- Offer to arbitrate the claim on damages only this means the provider agrees to admit liability (fault), and proposes binding arbitration to determine the amount of damages. (Often, such arbitration comes with a limit on certain damages for instance, Florida’s voluntary arbitration process caps noneconomic damages, as allowed by statute.)
If the defendant (or insurer) fails to respond within 90 days, the law treats it as a de facto rejection of the claim. In other words, silence after 90 days is the same as “no, we won’t settle” at that point, the claimant is free to proceed to file the lawsuit. Conversely, if an offer is made, the claimant has to decide whether to accept it. The claimant’s attorney must advise their client in writing of the offer/rejection and its implications within 30 days. (For example, the attorney will explain the pros and cons of an offered settlement or arbitration, the likelihood of success at trial, and estimated trial costs.)
Defense expert corroboration:
Just as the claimant needed an expert to vouch for the claim, a defendant who denies the claim is expected to have an expert vouch for the lack of negligence. Under Fla. Stat. § 766.203(3), if the prospective defendant’s response is a rejection, it should be accompanied by a verified written medical expert opinion that corroborates there were no reasonable grounds for negligence. This expert opinion (from a qualified medical expert, per the statute’s definition) would state something to the effect that the defendant’s care was within standard and did not cause the injury.
Failing to include an expert opinion with a rejection is not an automatic forfeiture for the defense, but it is significant. Florida courts have noted that an inadequate or missing defense expert affidavit can be prima facie evidence that the denial lacked a reasonable basis, potentially opening the defense to sanctions. In fact, if challenged, a court can later find the defendant’s presuit denial was not in compliance and strike the defendant’s pleadings for not having a meritorious defense. (We’ll discuss this consequence shortly.) The takeaway is that providers shouldn’t deny a claim lightly they are expected to have an expert backing their decision to contest the claim.
Why have this 90 day pause?
This period serves several purposes:
It gives the insurer/provider a chance to investigate and possibly resolve the claim without litigation costs. Many meritorious claims may settle at this stage if the facts are clear.
It provides a structured environment for dialogue and exchange of information (through informal discovery) so each side can assess the strength of the case.
It delays the filing of a lawsuit, which can be beneficial if the claim can be resolved saving court resources and legal expenses.
From the claimant’s perspective, even though it’s a delay, it can result in a quicker settlement or at least clarify the defendant’s position (accept fault, deny, etc.) before going to court.
During these 90 days, the claimant and their attorney should be prepared to comply with reasonable requests and also evaluate any response from the defense. For instance, if a settlement offer comes, they’ll consider if it’s fair; if an arbitration offer comes, they must weigh agreeing to it (noting that arbitration awards have caps on certain damages by law and no punitive damages). If the response is a full rejection, at least now the claimant can file suit knowing the defendant’s stance.
Step 4: Informal Discovery During the Pre-Suit Period
One unique feature of Florida’s malpractice pre suit process is that it allows “informal discovery” between the parties before a lawsuit is filed. This means that during the 90 day presuit investigation period, both the claimant and the prospective defendant have the right to obtain certain information from each other without formal court supervised discovery. The idea is to promote transparency and early fact finding so each side can evaluate the claim’s merits. Florida Statute § 766.106(6) authorizes several informal discovery tools, including unsworn statements and document exchanges, and requires both parties to cooperate (failure to do so can result in dismissal of claims or defenses).
Here are the types of informal discovery allowed (each must be requested in writing and shared with all parties):
Unsworn statements of the parties:
Either side can request to take an unsworn statement from the other party. This is much like a deposition, except the person is not under oath. For example, the defense can require the claimant (patient) to appear and answer questions about the case in an informal interview setting, and vice versa.
These sessions can be recorded (audio, video, or stenographically) and attorneys for each side can be present. However, because they are unsworn and part of presuit screening, anything said in these statements is confidential and not admissible later in court. (They are solely to aid evaluation; they cannot be used as evidence by the opposing party if the case proceeds.)
Production of documents or things:
Either party can request the other to produce relevant documents or items for review. For instance, the claimant can ask the hospital to produce internal incident reports or policies, and the defense can ask the claimant for any medical bills, prior medical records, or other evidence in their possession.
The responding party has 20 days to provide the requested materials, at the requesting party’s expense for copying. Notably, medical records must be provided pursuant to Fla. Stat. § 766.204; a healthcare provider cannot refuse to produce medical records by saying, for example, that the chart isn’t finalized or the patient owes a bill. Both sides are entitled to relevant medical records within 10 business days of request by law.
Physical and mental examinations of the claimant:
The prospective defendant can require the claimant to undergo a physical or mental exam by an appropriate healthcare provider of the defendant’s choosing (similar to an independent medical exam). They must give reasonable notice of the time and place, and the claimant usually only has to do one such examination for all defendants combined. The exam report must be shared with both parties and can only be used for presuit evaluation (it’s confidential otherwise). For example, if the patient is claiming a surgical injury, the defense might have an independent surgeon examine the patient to assess their condition.
Written questions (Interrogatories):
Either side may send up to 30 written questions to the other party, which must be answered in writing within 20 days. These are like a short set of interrogatories to clarify facts (e.g., “On what date did you first experience symptoms?” or “Identify any prior related injuries”). Limiting to 30 questions ensures the process is not too burdensome.
Interviews of the claimant’s treating health care providers:
The defense (prospective defendant or their lawyer) is allowed to request interviews with the patient’s treating doctors to discuss the case. This is somewhat controversial because of patient privacy, but Florida’s law permits it if the patient has signed the authorization form (which is required to be given with the notice). The provider must give notice to the claimant of the intent to interview a particular doctor, and the claimant or their attorney can attend the interview.
However, the treating doctor cannot be forced to talk; they may decline the interview. If the claimant’s side doesn’t cooperate in scheduling the interview within 15 days of the request, the defense may try to conduct it unilaterally. These interviews are informal discussions (often used to get the treating doctor’s perspective on what happened or the patient’s condition).
Unsworn statements of treating providers:
Similar to above, the defense can also take unsworn statements from the claimant’s treating physicians (or other providers) about issues relevant to the claim. The claimant must be given reasonable notice and has the right to be present for these statements. Like other unsworn statements, these are not admissible later; they’re purely for presuit fact finding.
All informal discovery requests and responses must be documented with proper certificates of service to keep everyone in the loop. And any documents produced by one side must be shared with all other parties (no hiding the ball).
Crucially, nothing obtained in this informal presuit discovery is admissible in the later lawsuit (except under very limited circumstances). Florida law explicitly states that any statements, documents, or reports generated during presuit are confidential and cannot be used by the opposing side as evidence in a civil trial. This rule encourages both parties to be open and cooperative for example, a patient can candidly give an unsworn statement about what happened without fear that a minor inconsistency will be used against them in court.
Similarly, a doctor can share internal findings or even apologies without those being later admissions. It’s a “safe harbor” for information exchange. The only exception is that the actual verified expert opinions (the ones backing the claim or denial) are discoverable in litigation, and an expert could face professional discipline if they gave a fraudulent opinion.
Compliance is key:
The informal discovery process has teeth if a party unreasonably refuses to participate or turn over information, their claims or defenses can be stricken by the court. For instance, if a patient outright refuses to attend an unsworn interview or doesn’t answer authorized written questions, the defense can later ask the court to dismiss the patient’s lawsuit for failing to comply with presuit discovery.
Likewise, if a doctor or hospital fails to produce relevant records or ignores all presuit questions, they could face sanctions such as losing the right to contest liability in court. As one Florida legal source notes, “The presuit discovery process should not be taken lightly. An unreasonable failure by either party to comply… will likely result in dismissal of claims or defenses.”
Example:
During the 90 day presuit phase for our earlier surgical error scenario, the surgeon’s insurer sends the patient 20 written questions about their injury and medical history (to clarify facts like prior surgeries, current symptoms, etc.), and requests an unsworn statement from the patient. The patient, with her attorney present, gives an informal recorded interview describing what happened and its impact on her health. The insurer also asks for copies of any relevant medical records not already provided (e.g. records from another hospital that treated the patient’s complication).
Meanwhile, the patient’s attorney might send the surgeon a few written questions about any internal incident investigation the hospital did. All of this occurs without any court involvement. By the end of the 90 days, both sides have a better sense of the case: the surgeon’s side has heard the patient’s story first hand and reviewed key records, and the patient’s side maybe gleaned the hospital’s perspective. This information exchange can facilitate a fair evaluation perhaps the insurer realizes the claim is strong and decides to offer settlement, or the patient learns additional facts that inform their decision to proceed.
Step 5: Conclusion of Presuit – Filing the Lawsuit (Timing and Next Steps)
After the 90 day presuit period has ended (or sooner if the prospective defendant issues an early response), the claimant faces a critical timeline for filing the actual lawsuit in court. As mentioned, the statute of limitations was tolled during presuit, but once presuit is over, the clock resumes. Florida law gives claimants a window of at least 60 days (or the remaining limitations period, whichever is longer) to file suit after the presuit process concludes. In practical terms:
If the statute of limitations had, say, 3 months left at the time you sent the notice, you will have that remaining 3 months or 60 days after presuit, whichever is greater. So you’d effectively still have 3 months post presuit to file.
If the statute would have expired during the presuit period, the law guarantees 60 days from the end of presuit to file, so you’re not penalized for the mandatory waiting time.
If the provider rejected the claim early (e.g., they responded with a denial after 60 days instead of using the full 90 days), that rejection terminates the presuit tolling at that point. The claimant then has 60 days or the remainder of the limitations period from the date of rejection to file suit. Essentially, rejection triggers the countdown to file just as the 90 day expiration would.
It’s important for claimants to file promptly once allowed, because if you miss this post presuit filing window, your claim can become time barred. Florida’s med mal statute of limitations is generally 2 years from when you knew or should have known of the malpractice (with some exceptions), so the presuit tolling and 60 day grace intend to preserve that but not extend it indefinitely.
If the provider offered to settle or arbitrate:
The claimant can choose to accept those offers instead of filing a lawsuit. If a settlement is accepted, the case ends with an agreed compensation. If binding arbitration of damages is accepted (with liability admitted by the defendant), the case moves to an arbitration panel rather than court. In arbitration, Florida law caps noneconomic damages (pain and suffering) at a certain amount (often $250,000) and disallows punitive damages, but the trade off is you’ve secured a win on liability and a potentially faster resolution.
If arbitration is offered and the claimant declines it, the case proceeds to court but there may be some limitations on damages or fees (Florida has complex rules to encourage accepting arbitration). For our purposes, just know arbitration is an alternate path at the end of presuit if the defendant admits fault.
Once the notice period is over and assuming no settlement, the claimant who complied with all presuit steps can file the formal complaint in circuit court. The complaint must allege that presuit notice was given and attach the attorney’s certificate of a good faith investigation (per §766.104), often along with an affidavit of compliance. The litigation then proceeds normally (summons, answer, discovery, etc.), but having gone through presuit, both sides are typically more informed about the case.
Who Must Follow Florida’s Pre-Suit Requirements?
Florida’s presuit notice and investigation requirements apply to all “medical negligence” (medical malpractice) claims in the state. This includes cases against any “health care provider” as defined by law, such as licensed physicians and osteopathic doctors, surgeons, dentists, hospitals and surgical centers, nurses and nurse practitioners, chiropractors, podiatrists, pharmacists, and other medical or surgical practitioners.
If you are alleging that a healthcare professional or facility provided negligent medical care or treatment that caused injury or death, these presuit rules apply whether the case is for personal injury or a wrongful death due to medical malpractice.
Importantly, both sides of the potential lawsuit are subject to the requirements:
The claimant
(injured patient or the representative of an injured or deceased patient) must comply with the investigation, expert affidavit, and notice steps before suing.
The prospective defendant
(doctor, hospital, etc.) and their insurer must in turn comply with the 90 day evaluation and (if denying) have their own expert review, as well as participate in good faith in the presuit discovery process.
These requirements apply regardless of the setting e.g., whether the provider is a private practitioner or a public hospital. Even if the defendant is a sovereign entity (like a state university hospital or county health agency), the case is still a medical malpractice claim subject to Chapter 766 presuit, in addition to any pre suit notice needed under the sovereign immunity law (Fla. Stat. §768.28).
The statutes explicitly state that presuit investigation rules apply to claims under §768.28 (actions against the state or its subdivisions) as well. In short, almost every medical malpractice claim in Florida must go through this presuit process, no matter who the parties are.
The only scenarios where these Chapter 766 presuit rules might not apply are if the claim is not truly a “medical negligence” claim. For example, if a lawsuit against a hospital is about something like a slip and fall in the lobby or a billing error not directly related to medical diagnosis, treatment, or care then it’s not a “medical malpractice” claim by definition. In such cases of ordinary negligence (unrelated to medical judgment), the presuit requirements would not be triggered.
But Florida courts look at the substance of the claim: if the wrongful act arose from medical services or requires medical expertise to evaluate, it will likely be deemed a medical malpractice claim and require presuit compliance. When in doubt, it’s safest to assume the presuit rules apply and proceed accordingly, since skipping them when they were required is fatal to a case.
Consequences of Non-Compliance with Pre-Suit Requirements
Florida’s medical malpractice pre suit procedures are not optional they are legal conditions precedent to filing suit. Courts strictly enforce these requirements, and the statutes provide harsh penalties for non compliance to ensure both parties take them seriously. Here are the key consequences if either side fails to comply:
Claimant’s failure to comply dismissal of the claim:
If a claimant (patient) does not fulfill the presuit steps before filing the lawsuit, the court will dismiss the case. For example, if you file a malpractice complaint without first sending the Notice of Intent to the doctor and waiting 90 days, the defense can move to dismiss and the court must throw out the case for lack of presuit notice. Similarly, if you did not obtain the required expert opinion or otherwise didn’t conduct a good faith investigation, the case can be dismissed. Under Fla. Stat. § 766.206(2), a judge who finds that the claimant’s notice of intent did not comply with the presuit investigation requirements (no adequate expert corroboration, or an improperly completed medical authorization) is required to dismiss the claim.
The law even says the person who sent the deficient notice (whether that’s the claimant or their attorney) shall be personally liable for the defendant’s attorney’s fees and costs incurred during the presuit investigation. In other words, a claimant who files a frivolous or non compliant presuit notice can be on the hook for the other side’s expenses. This fee shifting penalty is meant to deter plaintiffs from shortcutting the process or making baseless claims.
Practical note:
If a case is dismissed for presuit non compliance, sometimes the court may allow the claimant to go back and complete the presuit steps and then refile but this is only possible if the statute of limitations hasn’t expired. If the limitations period has passed, a dismissal effectively ends the claim. That’s why it’s crucial to do presuit right the first time and within the allowed timeframe.
Example:
A patient’s attorney files suit just before the statute of limitations, without sending any presuit notice, in a rush to beat the deadline. The defense will get the case dismissed for lack of notice. Because the deadline has now passed, the patient loses any chance to pursue the claim. Additionally, the court could order the patient or attorney to pay the doctor’s legal fees for having to deal with a lawsuit that never should have been filed before presuit.
Defendant’s failure to comply loss of defenses and other sanctions:
The presuit rules bind the prospective defendant as well. If a medical provider unreasonably stonewalls during presuit or rejects a claim without the required review, they can face consequences once the case goes to court. Under Fla. Stat. § 766.206(3), if a court finds that a defendant’s rejection of the claim was not in compliance with the presuit investigation requirements (e.g. the defense didn’t actually confer with an expert or had no reasonable basis to deny), the court shall strike the defendant’s pleadings.
Striking a defendant’s pleadings usually means the defendant loses their ability to contest liability essentially a default judgment on liability can be entered, leaving only damages to be determined. This is a severe sanction: the defendant would forfeit their defenses because they didn’t take presuit seriously. Furthermore, the person who mailed the bad faith rejection (whether the doctor, insurer, or their attorney) can be held personally liable for the claimant’s attorney fees and costs due to the unnecessary delay.
Example:
A hospital receives a detailed presuit notice of a malpractice claim. Suppose the hospital’s insurer ignores the notice and does no investigation, or denies the claim without ever consulting an expert. The patient then files suit after 90 days. During the lawsuit, the patient can file a motion under §766.206 for the court to review the hospital’s presuit conduct.
If the court finds the hospital did not have an expert opinion or a reasonable basis when it denied the claim, it can strike the hospital’s answer. The hospital would then be unable to contest that it was negligent, effectively losing on liability because it failed to follow the statute. Additionally, the hospital (or its insurer) might have to pay the patient’s legal costs caused by the improper denial.
Attorney disciplinary action:
Florida law also provides that if an attorney is found to have filed a medical negligence lawsuit without first serving a proper notice of intent and doing a reasonable investigation, or if an attorney (on the defense side) rejected a claim without reasonable investigation, the court must report that to The Florida Bar for disciplinary review. Repeat offenders (three violations in five years) get referred to a grievance committee. This means lawyers have a strong incentive to comply with presuit rules their professional license is on the line if they don’t.
Expert witness consequences:
There are even penalties aimed at the medical experts who provide the presuit opinions. If a court determines that an expert’s corroborating opinion was not based on a reasonable investigation or the expert wasn’t actually qualified under Florida’s expert standards, the court must report that expert to the state licensing authorities. An out of state expert can be reported to their home state’s board. Additionally, an expert who has been disqualified three times for inadequate opinions will have their testimony refused in Florida cases. This ensures that the doctors signing off on presuit affidavits do so truthfully and meet the credential requirements. In practice, Florida also has laws that if an expert lies in an affidavit, they could face perjury or professional discipline.
Overall, the sanctions for non compliance are severe because the state wants to enforce the integrity of the presuit process. The prospect of dismissal and financial penalties (or even defaulting the case for defendants) gives both sides a strong incentive to adhere to the rules. Courts have commented that while dismissal is a “certainly severe” sanction, it serves the purpose of ensuring everyone follows the presuit requirements.
Bottom line:
Whether you are a patient thinking of filing a malpractice lawsuit or a doctor facing a potential claim, you must follow Florida’s presuit procedures to the letter. For claimants, that means don’t file suit without first doing your homework: get an expert, send the notice, and wait the 90 days. For healthcare providers, don’t ignore a presuit notice: use the 90 days to seriously review the claim and involve an expert if you plan to deny it. Failing to do so can cost you your case or money, regardless of the underlying merits.
By clearly understanding and following these Florida pre suit requirements from the initial investigation and expert affidavit through the notice and 90 day evaluation period both injured patients and medical providers can ensure their rights are protected under the law. The process may seem cumbersome, but it reflects a policy balance: filtering out groundless claims while permitting valid cases to proceed with supporting evidence. For anyone navigating a potential medical malpractice case in Florida, knowledge of these presuit steps is essential. Skipping or mismanaging this process can end a case before it begins, whereas strict compliance sets the stage for a fair chance to seek justice in court if needed.
Sources
- Florida Statutes §§ 766.106, 766.203, 766.204, 766.206 (presuit notice, investigation requirements, and sanctions in medical malpractice)
- Florida Bar Journal “Judicial Interpretations of Presuit: How to Avoid Pitfalls…” (discussing the purpose of presuit rules and case law like Kukral v. Mekras)
- Lesser, Landy, & Smith PLLC “Florida Medical Malpractice Pre Suit Requirements: Before Filing a Case” (legal blog outlining steps and practical tips)
- Florida Senate 2021 Florida Statutes Chapter 766.106 (full text of presuit procedures, informal discovery, and timelines)
- Florida Senate 2025 Florida Statutes Chapter 766.203 (claimant’s and defendant’s presuit investigation and expert opinion requirements)
Attorney Bio: Jorge L. Flores, Florida Bar No. 53244, has been representing families in Miami Dade for over 30 years.
Disclaimer: This overview is general information, not legal advice. Deadlines and procedures can change based on facts and parties. For guidance on your specific situation, contact a Florida medical malpractice attorney.