Medical Malpractice

Medical Malpractice Lawsuit Requirements in Florida

by David Goguen, J.D., University of San Francisco School of Law
A plaintiff who wants to file a medical malpractice lawsuit in Florida needs to do a lot more than just draft and file the complaint. Here's what you need to know.

Compared with other kinds of civil cases, a Florida medical malpractice lawsuit can be pretty complicated. This is not just because of the web of medical and legal issues, which can require the introduction of extensive treatment records and the detailed testimony of expert witnesses. It's also because in Florida, as in most states, the plaintiff (that's the person who is filing the lawsuit) needs to comply with a number of procedural requirements at the outset of the case.

While your Florida medical malpractice attorney will have the experience and skills to navigate these rules, it helps to have an understanding of what's in store, so read on for a summary of the procedural hoops you'll have to jump through when filing a medical malpractice lawsuit in Florida. And remember that this is all in addition to drafting and filing the complaint, which is the initial document that lays out your claims against the health care provider.

Serving Notice of Claim

Under Florida Statutes section 766.106, before filing a medical malpractice lawsuit in the state's civil court system, the claimant is required to notify each prospective defendant (meaning the health care provider(s) the claimant is planning to sue) of the intent to file the lawsuit. (Learn how to figure out whether you have a medical malpractice case.)

This notice must include, where available,

  • a list of all health care providers that treated the claimant for the harm or injuries stemming from the alleged malpractice
  • a list of all health care providers seen by the claimant in the two years prior to the alleged malpractice, and
  • copies of all medical records relied on by the claimant's expert medical witness in signing the "affidavit of merit" that must accompany the lawsuit (more on this in the following section).

After sending this notice (via certified mail, return receipt requested, as required by the statute), the claimant must wait at least 90 days before filing the lawsuit. During this 90-day period, the defendant health care provider(s) are to conduct a "presuit investigation" into the claims. At the end of the 90-day period, each prospective defendant must either:

  • reject the claim outright
  • make a medical malpractice settlement offer to the claimant, or
  • admit liability and make an offer to arbitrate the issue of the claimant's damages resulting from the malpractice.

The serving of this 90-day notice of claim also acts to pause (or "toll" in legalese) the running of the statute of limitations "clock." (Learn more about the statute of limitations for Florida medical malpractice lawsuits.) This gives the claimant and all health care providers more time to resolve the case via out-of-court settlement, perhaps before a lawsuit even needs to be filed.

Authorization for Release of Protected Health Information

Along with the "notice of intent to initiate litigation" outlined above, the plaintiff or his or her attorney must provide to each named health care provider an "authorization for release of protected health information," so that each provider can obtain the claimant's health records and investigate the allegations of malpractice. The format and wording for this authorization can be found at Florida Statutes section 766.1065. If this authorization is not sent along with the presuit notice, the notice will be considered void.

Presuit Investigation and Affidavit of Expert

Before sending the "notice of intent to initiate litigation," Florida Statutes section 766.203 requires the claimant to conduct an investigation to determine whether there are "reasonable grounds" to believe that the prospective defendant health care provider was negligent in treating the claimant, and that that negligence caused harm to the claimant.

Corroboration of these medical malpractice details and the "reasonable grounds" finding must be provided via a "verified written medical expert opinion" from a qualified expert, which must accompany the "notice of intent to initiate litigation" discussed above.

Learn more about proving medical malpractice against a health care provider.

Looking for More Information?

Florida's presuit process for medical malpractice lawsuits is much too detailed to fully explain here. For a comprehensive explanation of this procedure, talk to your Florida medical malpractice attorney or read the full text of Florida Statutes section 766.106.

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