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Last updated April 22, 2026
Under Florida Statute § 766.106, before filing a medical malpractice lawsuit a claimant must complete a formal pre-suit process: investigate the claim, obtain a corroborating expert opinion, serve a Notice of Intent on each defendant, and wait 90 days. Missing a step; or sending an incomplete notice; can result in dismissal of the entire case.
REQUIRED
PRE-SUIT APPLIES IF…
You are suing a licensed health care provider in Florida
Physicians, surgeons, nurses, hospitals, surgery centers, anesthesiologists, radiologists, pharmacists, dentists, and any other provider licensed under Chapter 766. The pre-suit process is mandatory and you cannot file a complaint in court until it is complete.
DIFFERENT RULES
SEPARATE PROCESS IF…
You are suing a nursing home or public hospital
Nursing home claims follow § 400.0233 (75-day pre-suit). Claims against public hospitals or state-employed doctors also require notice under § 768.28 sovereign immunity. Both are covered below.
The 5-Step Florida Pre-Suit Process
Florida’s pre-suit process moves in five sequential steps. The process is slow on purpose; the Legislature designed it to filter claims and force both sides to invest in real evidence before any case reaches a courtroom. Each step must be completed correctly before the next step begins.
Gather Records and Identify Every Defendant
Collect medical records from every treating provider, including records from the two years before the alleged negligence. Identify every potential defendant now; adding defendants after the statute of limitations runs is often impossible.
Obtain a Corroborating Medical Expert Affidavit
A qualified medical expert must review the records and sign a sworn written opinion confirming that the provider breached the professional standard of care and that the breach caused the injury. The expert must match the defendant’s exact specialty under the 2013 amendment to § 766.102(5).
Serve the Notice of Intent on Each Defendant
The Notice of Intent, known as the NOI, must be served on every prospective defendant by certified mail, tracked shipping, or process server. Each defendant gets a separate NOI with its own complete package of records and the expert affidavit. The full package requirements are listed below.
The 90-Day Investigation Period
The defendant’s insurance carrier has 90 days to investigate and respond with one of three answers: reject the claim, offer a settlement, or offer binding arbitration. During this period both sides engage in informal discovery. See the section below.
File the Complaint (60-Day Window)
After the 90 days expires, the claimant has 60 days, or the remaining time on the statute of limitations (whichever is longer), to file the lawsuit in circuit court. Missing this window is often fatal; the case cannot simply be filed the week after.
What the Notice of Intent Must Contain
The Notice of Intent is not a letter. It is a complete evidentiary package required by § 766.106(2), and sending an incomplete package is treated as if no notice was sent at all. Every one of the items below must be included before the NOI is served.
01 · THE CLAIM
Description of the alleged malpractice and the injury it caused. Must identify the provider, the date of care, and the specific breach of the standard of care.
02 · EXPERT AFFIDAVIT
Verified written opinion from a qualified medical expert. The expert must be in the same specialty as the defendant and must address both breach and causation.
03 · COUNSEL’S CERTIFICATE
Certificate of counsel confirming that the attorney has conducted a good-faith investigation and believes the claim has a reasonable basis.
04 · PROVIDER LIST
A list of every health care provider the claimant saw during the two years before the alleged negligence, and every provider seen afterward for the resulting injury.
05 · MEDICAL RECORDS
Copies of all medical records the expert relied on in forming the corroborating opinion. Missing records can void the notice.
06 · HIPAA AUTHORIZATION
Signed HIPAA authorization under § 766.1065. If this authorization is later revoked, the entire pre-suit notice is voided retroactively, including any tolling of the statute of limitations.
⚠ WHY THE HIPAA FORM MATTERS
The § 766.1065 HIPAA authorization lets the defendant’s carrier obtain records during the 90-day period. If the claimant revokes it at any point, the notice is treated as if it was never served. Any tolling benefit on the statute of limitations disappears along with it; this is one of the most dangerous footguns in Florida medical malpractice practice.
What Happens During the 90-Day Window
The 90-day window is not dead time. Both sides are expected to investigate the claim through a set of informal discovery tools under § 766.205. Anything exchanged during this period is inadmissible at trial, which is designed to encourage honest exchange without tactical risk.
WHAT THE CARRIER MUST DO
Within 90 days, the carrier must investigate in good faith and respond with one of three positions:
- Reject the claim with a supporting expert affidavit
- Make a written settlement offer
- Offer voluntary binding arbitration under § 766.207
Silence is treated as rejection at day 91.
INFORMAL DISCOVERY (§ 766.205)
Either side may use the tools below during the 90 days:
- Up to 30 written questions
- Records requests (answered within 10 business days)
- Unsworn statements from witnesses
- Physical examination of the claimant
- Interviews with treating providers
Nothing exchanged is admissible at trial.
How Pre-Suit Affects the Statute of Limitations
Florida medical malpractice claims must generally be filed within two years of discovering the injury, with a four-year outer deadline from the date of care under § 95.11(4)(b). Families often worry that the 90-day pre-suit wait will eat into that deadline; it does not. The 90 days pauses the clock rather than running it down.
DISCOVERY RULE
2 years
from discovery of the injury
OUTER DEADLINE
4 years
from date of care (statute of repose)
PRE-SUIT PAUSE
+ 90 days
added to whichever deadline applies
Under Boyle v. Samotin (Fla. 2022), the pre-suit tolling clock starts on the date the Notice of Intent is mailed, not the date the defendant receives it. Under Hankey v. Yarian (Fla. 2000), the claimant receives the full statutory period plus the 90-day pause. A separate 90-day extension is available under § 766.104(2) by filing a petition with the clerk and paying a modest fee; it must be filed before the original deadline expires.
Mistakes That Kill Florida Pre-Suit Cases
Pre-suit dismissal under § 766.206 is common, and the penalties go beyond simply losing the case; the court can order the claimant or the claimant’s attorney to pay the defendant’s fees and costs. The mistakes below account for the majority of dismissals.
RISK 01
Waiting Too Long to Start
The two-year statute of limitations runs while records are gathered and the expert is retained. Most dismissal cases trace back to claimants who started the process with only a few months left.
RISK 02
Missing a Defendant
Every provider requires a separate NOI. Adding a defendant after the statute of limitations has run is often impossible, which makes early defendant identification critical.
RISK 03
Wrong Expert Specialty
For a specialist defendant, the expert must be in the exact same specialty under the 2013 amendment to § 766.102(5). A cardiologist cannot corroborate a claim against a neurosurgeon.
RISK 04
Revoking the HIPAA Authorization
Voids the entire pre-suit notice retroactively. Any tolling of the statute of limitations disappears along with the notice.
RISK 05
Incomplete NOI Package
Missing the expert affidavit, missing records, or missing the provider list is treated as if no notice was served. The 90-day clock never starts.
RISK 06
Missing the 60-Day Filing Window
After the 90-day pre-suit period expires, the complaint must be filed within 60 days or the remaining statute of limitations time, whichever is longer. This window is often missed.
When the Standard Pre-Suit Rules Do Not Apply
Two categories of defendants follow different pre-suit rules than the standard § 766.106 process. The differences are meaningful and missing them can disqualify an otherwise strong case.
NURSING HOMES
§ 400.0233 · 75-day period
A separate nursing-home statute controls. The pre-suit period is 75 days instead of 90, and the content requirements of the notice differ from the § 766.106 NOI.
PUBLIC HOSPITALS & STATE EMPLOYEES
§ 768.28 · Sovereign immunity
Claims against Jackson Memorial, UF Health Shands, and other public hospitals require a separate sovereign-immunity notice on top of § 766.106. Recovery is capped at $200,000 per person under the sovereign immunity statute; see our
no-cap rule guide for the full ceiling analysis.
Frequently Asked Questions
What is a pre-suit notice under Florida Statute § 766.106?
A pre-suit notice, formally called a Notice of Intent to Initiate Litigation, is a mandatory pre-lawsuit filing required under § 766.106 before any medical malpractice case can be filed in Florida. The notice informs each prospective defendant of the claim, provides a sworn expert affidavit supporting the allegations, and triggers a 90-day investigation period during which the parties exchange information.
How long does the Florida pre-suit process take?
From the initial intake to filing a lawsuit, the Florida pre-suit process typically takes four to six months. The mandatory 90-day investigation period is only one component; obtaining records, retaining a qualified medical expert, and preparing the Notice of Intent package usually takes another two to three months before the 90 days even begins.
What happens if the doctor does not respond within 90 days?
Silence at the end of the 90-day period is treated as a rejection of the claim under § 766.106(3). The claimant is free to file a lawsuit in circuit court during the 60-day window that follows, or the remaining statute of limitations time, whichever is longer.
Does the 90-day pre-suit period count against my statute of limitations?
No. The 90-day pre-suit period pauses the statute of limitations under § 766.106(4). Under Hankey v. Yarian (Fla. 2000), the claimant receives the full two-year or four-year period plus the 90 days. An additional 90-day extension is available under § 766.104(2) by filing a petition with the clerk before the original deadline.
Can I file a lawsuit without sending a pre-suit notice first?
No. A complaint filed before the pre-suit process is complete will be dismissed under § 766.106(3). Attempting to bypass the pre-suit requirement also exposes the attorney to sanctions and can result in the statute of limitations running out before a proper notice is served.
What is informal discovery under § 766.205?
Informal discovery is a set of investigative tools both sides can use during the 90-day pre-suit window. It includes up to 30 written questions, records requests (answered within 10 business days), unsworn statements from witnesses, a physical examination of the claimant, and interviews with treating providers. Nothing exchanged during informal discovery is admissible at trial.
What is voluntary binding arbitration in a pre-suit case?
Under § 766.207, a defendant may offer voluntary binding arbitration during the 90-day pre-suit period. If the claimant accepts, the case is resolved before an arbitration panel rather than a jury. Acceptance generally limits non-economic damages, so the trade-off should be evaluated carefully with counsel before the 90-day window closes.
Does the pre-suit notice apply to nursing home cases?
No. Nursing home claims follow a separate pre-suit statute, § 400.0233, which imposes a 75-day pre-suit period rather than the 90-day period in § 766.106. The content requirements of the nursing-home notice also differ. Claims against public hospitals require a sovereign-immunity notice under § 768.28 in addition to § 766.106.
FREE CONSULTATION · NO FEE UNLESS WE RECOVER
The Florida pre-suit process is slow, technical, and unforgiving of mistakes. The Law Offices of Jorge L. Flores, P.A., handles the entire process for our clients from investigation through filing.
Every consultation is free, every conversation is confidential, and we do not collect a fee unless we recover compensation for you.
SELECTED CASE RESULTS
Recent matters from the Law Offices of Jorge L. Flores, P.A. See our full Case Results page for additional matters.
$12,250,000
HOSPITAL NEGLIGENCE
Failure to diagnose ischemic stroke resulting in catastrophic brain injury.
$8,250,000
DELAYED STROKE DIAGNOSIS
Failure to timely diagnose evolving stroke, producing catastrophic permanent injuries.
$3,250,000
BIRTH MALPRACTICE
Failure to properly read amniocentesis results, resulting in significant newborn injury.
Past results are not a guarantee of future outcomes. Every case is different and must be evaluated on its own merits. The information presented here was not reviewed or approved by The Florida Bar.
