By Brian French | Florida Authority Network | September 10, 2026
Quick Answer
Florida does not let a patient walk into a courthouse and sue a doctor. Before any lawsuit can be filed, Chapter 766 of the Florida Statutes requires five things: (1) confirm your deadline under the two-year statute of limitations, (2) obtain your medical records, (3) get a verified written opinion from a qualified medical expert, (4) serve a Notice of Intent on every defendant, and (5) wait out a 90-day pre-suit investigation period. Only after those steps can a complaint be filed in Florida circuit court.
Why Florida Is Different
Most personal injury cases in Florida begin with a complaint. Medical negligence cases begin with a statutory obstacle course. The Legislature built the pre-suit screening system in the 1980s to filter out weak claims before they reach a judge, and the process has survived multiple rounds of tort reform largely intact.
The practical effect is that a Florida malpractice claim is usually four to six months old before it is ever filed. Missing a single procedural step can get a case dismissed regardless of how strong the underlying medicine is.
The Five-Step Process
Step 1: Confirm the Deadline
Florida Statute § 95.11(4)(c) gives a patient two years to bring a medical malpractice action. The clock starts when the injury is discovered, or when it should have been discovered with reasonable diligence, not necessarily on the date of the treatment.
There is also a hard ceiling. The statute of repose bars most claims four years after the incident, no matter when the injury was discovered. That extends to seven years if fraud, concealment, or intentional misrepresentation kept the patient from finding the injury. A separate exception protects young children: the repose period does not cut off a claim brought on behalf of a child before the child’s eighth birthday.
Two pre-suit tools can buy time. Under § 766.104(2), an attorney can file a petition with the clerk of court for an automatic 90-day extension of the limitations period, no explanation required. And once a Notice of Intent is served, § 766.106(4) tolls the limitations period for the duration of the 90-day pre-suit window plus 60 days afterward.
Step 2: Obtain the Medical Records
A pre-suit investigation cannot happen without the chart. Section 766.204 requires providers to furnish copies of records within 10 business days of a written request. A provider that fails to comply loses the right to later contest the claimant’s compliance with the pre-suit reasonable investigation requirement. Requests should go to every facility and practitioner involved in the care, not just the suspected wrongdoer.
Step 3: Secure the Medical Expert Affidavit
This is the step that stops most claims. Under § 766.203(2), the claimant must conduct a reasonable investigation and obtain a verified written medical expert opinion stating that there are reasonable grounds to believe the provider was negligent and that the negligence caused injury. The expert must sign the opinion under oath.
Florida sets a high bar for who qualifies. Section 766.102(5) requires the expert to practice in the same specialty as the defendant, or for a general practitioner defendant, to have been in active practice or teaching in the relevant field within the preceding five years. A cardiologist cannot opine against an orthopedic surgeon. The expert must also hold an active, unrestricted license and have devoted professional time to clinical practice, teaching, or research in that specialty during the three years before the incident.
The claimant’s attorney must separately certify under § 766.104(1) that a reasonable investigation gave rise to a good-faith belief that grounds exist for a claim. Filing without that certification exposes the attorney to sanctions.
Step 4: Serve the Notice of Intent
With the expert opinion in hand, the claimant serves each prospective defendant with a Notice of Intent to Initiate Litigation by certified mail, return receipt requested, under § 766.106(2). The notice must attach the verified expert opinion and a list of all known providers who treated the patient for the injury during the two years before the incident and all providers seen afterward.
A signed authorization for release of protected health information, in the form prescribed by § 766.1065, must accompany the notice. This is a frequent trap. Courts have dismissed claims when the authorization was omitted or defective, and a notice served without it may not toll the statute of limitations.
Step 5: Complete the 90-Day Pre-Suit Period
Service of the notice opens a 90-day window under § 766.106(3) during which no lawsuit can be filed. During that period, both sides engage in informal discovery: unsworn statements, document requests, written questions, and physical examinations. Each side is expected to cooperate; unreasonable refusal can be sanctioned.
Before the 90 days expire, the defendant or insurer must do one of three things: reject the claim in writing, make a settlement offer, or admit liability and offer to arbitrate damages under § 766.207. Silence at the end of 90 days counts as a rejection.
Once the period ends, the claimant has 60 days or the remainder of the limitations period, whichever is longer, to file the complaint in circuit court. Filing before the 90 days run is grounds for dismissal.
Florida Malpractice Timeline at a Glance
| Stage | Statute | Deadline |
|---|---|---|
| Limitations period | § 95.11(4)(c) | 2 yrs from discovery |
| Statute of repose | § 95.11(4)(c) | 4 yrs (7 if fraud) |
| Automatic extension | § 766.104(2) | +90 days by petition |
| Records production | § 766.204 | 10 business days |
| Pre-suit period | § 766.106(3) | 90 days |
| Post-notice tolling | § 766.106(4) | 90 days + 60 days |
| Defendant response | § 766.106(3) | By day 90 |
| Mandatory mediation | § 766.108 | Within 120 days of filing |
What Happens After Filing
Filing the complaint does not end the statutory sequence. Section 766.108 requires the court to order mediation within 120 days of suit. Discovery, expert depositions, and trial follow the Florida Rules of Civil Procedure like any other civil case, though malpractice cases in urban circuits such as Hillsborough, Miami-Dade, and Duval routinely take two to three years to reach trial.
Florida caps on noneconomic damages, once found in § 766.118, no longer apply. The Florida Supreme Court struck the wrongful death cap in Estate of McCall v. United States (2014) and the personal injury cap in North Broward Hospital District v. Kalitan (2017).
Special Situations
Public hospitals. A claim against a county hospital, state university medical center, or other governmental provider triggers sovereign immunity under § 768.28. That statute requires separate written notice to the agency and the Department of Financial Services and caps recovery at $200,000 per person and $300,000 per incident, absent a legislative claim bill.
Wrongful death. Florida’s Wrongful Death Act imposes a restriction that exists nowhere else in the country. Under § 768.21(8), when an unmarried adult with no minor children dies from medical negligence, adult children 25 or older and parents of the deceased cannot recover noneconomic damages. The 2026 repeal bill, HB 6003, passed the Florida House 88-17 on January 15, 2026, but died in the Senate when the session adjourned in March, following a 2025 repeal that passed both chambers and was vetoed by Governor DeSantis on May 29, 2025. The provision remains in force as of September 2026. Economic damages such as lost support and funeral costs are still recoverable by the estate.
Nursing homes. Injuries in licensed nursing facilities are governed by Chapter 400, which has its own pre-suit and damages framework and is not subject to the § 768.21(8) limitation.
Brian’s Take
The pre-suit system does what it was designed to do: it makes Florida malpractice litigation expensive to start. A single specialist affidavit can cost $5,000 to $15,000 before a claimant knows whether the case is viable, and contingency firms absorb that cost. The economic result is that meritorious claims worth less than roughly $250,000 in damages frequently go unfiled because the math does not work for the lawyer.
For healthcare operators, that is the quiet subsidy the statute provides. For patients, the lesson is speed. The two-year clock is short, the records request should go out the week a problem is suspected, and the expert search should not wait for the records to arrive. Most malpractice cases that fail in Florida fail on the calendar, not on the medicine.
Frequently Asked Questions
Can I file a malpractice claim in Florida without a lawyer?
Technically yes, but the expert affidavit, certificate of counsel, and pre-suit notice requirements make self-representation impractical. Courts do not relax Chapter 766 for pro se claimants.
Does the 90-day pre-suit period apply to every defendant?
Yes. Each prospective defendant must receive its own notice, and the 90-day clock runs separately for each from the date of service.
What if the doctor never responds to the Notice of Intent?
Silence is treated as a rejection at the end of the 90 days, and the claimant may proceed to file suit.
Can the expert be from another state?
Yes, if the expert meets the specialty and active-practice requirements of § 766.102 and holds a valid license in any state. Out-of-state experts must obtain an expert witness certificate from the Florida Department of Health.
Is there a cap on damages in Florida malpractice cases?
Not for noneconomic damages against private providers. Caps apply only to governmental providers under sovereign immunity.
Does the pre-suit process apply to claims against hospitals?
Yes. Hospitals, ambulatory surgical centers, and other licensed facilities are healthcare providers under § 766.202 and are entitled to the same pre-suit protections.
Sources and Further Reading
- Florida Statutes, Chapter 766, Medical Malpractice and Related Matters – https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/0766.html
- Florida Statutes § 95.11, Limitations Other Than for the Recovery of Real Property – https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html
- Florida Statutes § 768.28, Waiver of Sovereign Immunity in Tort Actions – https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.28.html
- Florida Statutes § 768.21, Wrongful Death Damages – https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.21.html
- Florida House of Representatives, HB 6003 (2026), Medical Negligence Wrongful Death Damages – https://www.myfloridahouse.gov
- Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014) – https://supremecourt.flcourts.gov
- North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017) – https://supremecourt.flcourts.gov
- Florida Department of Health, Expert Witness Certificate Information – https://flhealthsource.gov
- LawsuitLegal, Florida Free Kill Law Explained (July 2026) – https://www.lawsuitlegal.com/florida/free-kill-law.php
