Under Florida Statutes § 766.106, anyone planning to sue a health care provider for medical negligence has to complete a specific pre-suit process before taking the case to court.
That process starts with a formal Notice of Intent to Initiate Litigation, but the real purpose runs deeper than sending paperwork. The statute is meant to filter out unsupported cases, encourage early resolution, and reduce the cost and time involved in full litigation.
Why the Process Exists
Medical malpractice cases carry high stakes—serious injuries, reputational damage, insurance payouts, and years of court time. Without any guardrails, a provider could be pulled into a lawsuit based on a hunch or general dissatisfaction with care. The state wanted to avoid that, so it put the burden on the person bringing the case to do their homework first.
Florida law requires the claimant (or their lawyer) to show that a valid case exists. That includes investigating the facts, gathering records, and securing a medical expert’s written opinion before any lawsuit can be filed. From there, the provider and their insurer have 90 days to review the claim, conduct their own investigation, and decide whether to settle, arbitrate, or reject it.
How a Malpractice Case Can Be Dismissed Before It Starts
If the notice is incomplete or not properly served, or if the expert opinion doesn’t meet statutory requirements, the case can be dismissed under Fla. Stat. § 766.206. That includes sending the notice before completing a full investigation or failing to include the necessary records or expert certification.
Courts can also order the claimant or attorney to pay the provider’s legal costs. Experts who don’t meet qualification standards may be disqualified, and attorneys who repeatedly violate the statute risk referral to The Florida Bar for disciplinary action.
When a Case Counts as Medical Malpractice in Florida
Not every injury tied to medical treatment qualifies as malpractice under Florida law. The statutes apply only in specific situations—and missing the mark on either requirement could mean the case doesn’t follow the malpractice pre-suit process at all.
How the Law Defines a Medical Malpractice Case
Under Fla. Stat. § 766.106(1)(a), a case falls under medical malpractice if:
- It’s based on medical care or services provided—or not provided—by a health care provider
- The party being accused fits Florida’s legal definition of a “health care provider”
The care in question has to relate directly to diagnosis, treatment, or other hands-on medical services. Complaints about general operations, like scheduling or billing, may fall outside the statute and may follow different rules.
Who Is Legally Considered a Health Care Provider
Florida law identifies a specific list of licensed providers covered by the statute.
- Physicians and osteopathic doctors
- Nurses and nurse practitioners
- Dentists, podiatrists, optometrists, chiropractors, and pharmacists
- Hospitals, ambulatory surgical centers, and other licensed facilities
That list comes from Fla. Stat. § 766.202(4). If the person or business being accused doesn’t fall into one of those categories, the case likely won’t be treated as medical malpractice under the law.
A hospital or employer can also be held legally responsible for what a provider did. The law refers to this as vicarious liability. For example, if a nurse working for a hospital makes a serious mistake during patient care, the hospital may be liable—even if the patient never sues the nurse directly.
Step One: Sending a Notice of Intent to the Provider
The first required step is serving the Notice of Intent to Initiate Litigation, which tells the provider that a malpractice case may follow and triggers the 90-day review period under Fla. Stat. § 766.106(2).
Sending the Notice
Under Fla. Stat. § 766.106(2), a person who intends to sue over medical negligence has to serve a notice by certified mail, return receipt requested. That step starts a 90-day waiting period, during which the provider and their insurer are expected to review the claim and decide how to respond.
The process isn’t optional. Skipping it shuts down the case, regardless of how strong the underlying facts might be. And if the notice is incomplete or unsupported, the court may dismiss the case entirely under § 766.206.
What Has to Be Included in the Notice
The notice has to include specific documentation showing the claim is backed by investigation and expert support.
- A short summary of the alleged negligence and the injury or harm that followed
- A certificate of counsel confirming that an attorney has reviewed the facts and believes the case has legal merit
- A verified medical expert opinion from a qualified professional who supports the claim
- A list of all known providers who treated the person after the alleged negligence
- A list of providers seen within two years prior to the care at issue
- Medical records relied on by the expert when forming their opinion
- A signed authorization form that allows the provider to access and review protected health information (per § 766.1065)
A proper notice sets out the facts, identifies the key providers, and shows the claim is supported by a medical opinion—not just an allegation.
Step Two: Submitting a Medical Expert Opinion
Florida law requires a written opinion from a qualified medical expert before the Notice of Intent is sent. The opinion has to support the allegation of negligence. Without it, the case can be dismissed.
What Counts as a Qualified Expert
Under Fla. Stat. § 766.102(5), an expert needs to:
- Hold a current, valid license
- Have recent, hands-on experience—typically within the past 3 to 5 years—in the same or a similar specialty
- Match the defendant’s specialty if the provider is a specialist
- Not be paid based on the outcome of the case
Testimony is barred if the expert has been disqualified in three or more prior cases under the statute. The attorney also needs to certify that the expert has never been found guilty of fraud or perjury.
Additional requirements apply in certain cases. For example, an expert testifying about care by a nurse, emergency room provider, or facility has to have direct experience in that setting.
Why the Opinion Comes First
Under § 766.203(2), the expert opinion is one of the documents that makes the Notice of Intent valid. If it’s missing or doesn’t meet the statute’s requirements, the court can dismiss the case under § 766.206.
The expert opinion sets the threshold. The case doesn’t proceed unless a qualified expert is willing to say the provider may have delivered negligent care.
What Happens During the 90-Day Waiting Period
Once the Notice of Intent is served, Florida Statutes § 766.106(3) puts a 90-day pause on filing a lawsuit. During that time, the provider and their insurer are expected to review the claim and decide how to respond.
What the Provider and Their Insurer Are Required to Do
The law expects them to:
- Investigate the claim
- Decide whether to reject it, make a settlement offer, or propose arbitration
- Support any rejection with a verified expert opinion that explains why no negligence occurred
The review isn’t optional. A response without expert backing can trigger penalties, including striking the provider’s pleadings under § 766.206.
Why the Timeline Is So Strict
The 90-day window gives the provider a chance to evaluate liability and decide whether early resolution makes sense. Until that period runs out, no malpractice lawsuit can be filed.
If the insurer fails to respond by the end of the period, the law treats it as a rejection. That clears the way to file the case in court, but it also signals that settlement or arbitration is off the table, at least for now.
Informal Discovery: What Both Sides Can Ask For Before a Lawsuit
Florida’s pre-suit rules allow limited fact-gathering to help both sides assess the case early. Informal discovery happens outside formal litigation and doesn’t require court involvement.
The Types of Informal Requests Allowed
During the 90-day review period, either side can request:
- Up to 30 written questions
- Copies of relevant medical records
- An unsworn statement from the other party
- A physical or mental exam of the claimant
- Interviews with treating healthcare providers
Each option is meant to clarify facts, not support trial preparation.
What Can and Can’t Be Used Later in Court
Anything shared or said during informal discovery stays out of trial. Under Fla. Stat. § 766.106(6), material disclosed during this phase can’t be used as evidence by the other side.
That protection encourages open discussion. Both parties get a clearer view of the case before deciding whether to settle, arbitrate, or move forward.
What the Law Requires After the 90-Day Review Ends
Once the 90-day period runs out, the provider has to make a decision. The law outlines three clear options.
Three Paths a Provider Can Take
- Reject the claim
- Make a written offer to settle
- Offer arbitration on damages while accepting fault
If the provider doesn’t respond, it counts as a rejection under Fla. Stat. § 766.106(3)(b).
What the Patient Has to Do Next
Once a response is received, the claimant decides how to proceed:
- Accept the offer—or decline it
- If no resolution happens, file the case within the allowed time after mediation or notice of terminated negotiations
Deadlines still apply. Any delay can forfeit the right to file.
How the Timelines Work—and What Happens If You Miss One
Florida law imposes strict deadlines around every phase of a medical malpractice case. Missing any step can end a case permanently.
- The statute of limitations is two years from when the injury was—or should have been—discovered.
- The statute of repose sets a four-year cap regardless of discovery. If there was fraud or concealment, that limit can extend to seven years.
- The Notice of Intent has to be served before the two-year deadline. Once it’s mailed, the statute is paused during the 90-day review period.
- The pause also applies during formal mediation or any agreed extensions.
- After the review period ends, the lawsuit needs to be filed within 60 days or the remaining time left under the statute—whichever is longer.
Even strong cases can be barred if the deadlines aren’t met. Florida’s pre-suit process leaves little room for delay.
What Happens If a Lawyer or Expert Breaks the Rules
Florida’s pre-suit process has clear rules. If any part is mishandled, the case can be stopped before it ever moves forward.
Consequences for the Patient or Their Lawyer
If the notice is missing required parts—like a valid expert opinion or attorney certification—the court can dismiss the case under Fla. Stat. § 766.206(2). That includes opinions from experts who aren’t qualified under § 766.102 or affidavits that aren’t based on a full review.
The court may also shift costs to the claimant or their attorney. When lawyers repeatedly send out flawed notices, the judge can refer them to The Florida Bar for possible discipline under § 766.206(4).
Consequences for the Provider or Their Lawyer
The same standards apply to the defense. If a provider rejects a claim without conducting an investigation or securing a qualified expert opinion, their pleadings can be struck under § 766.206(3).
Legal costs may also shift to the provider, their insurer, or their attorney. Repeat violations can lead to a Bar referral, just as they can for the plaintiff’s side.
Experts Can Be Reported and Disqualified
Experts are held to the same level of accountability. If an opinion lacks support or the expert doesn’t meet the qualifications under § 766.102(5), the court can report them to the licensing board under § 766.206(5)(a).
Once an expert has been disqualified three times under the statute, courts no longer have to accept their testimony—even if it relates to a future case.
Nursing Home Cases and Government Claims Follow Different Rules
Not every medical-related claim in Florida follows the same pre-suit rules. Nursing home cases and claims against government providers are handled under different statutes with shorter timelines and additional notice requirements.
For nursing home negligence, Fla. Stat. § 400.0233 sets a 75-day pre-suit period—shorter than the 90 days used in standard medical malpractice cases.
Claims against government entities are also treated differently. Under 2025 legislative updates, those cases now require notice within 18 months and give the agency four months to respond. The statute of limitations is shorter as well—two years from the alleged negligence.
The core idea is similar—early review before a lawsuit can be filed—but the timelines and procedures aren’t interchangeable.
Why the Pre-Suit Phase Decides Whether a Case Moves Forward
Most malpractice cases in Florida don’t fail because of weak facts—they fall apart before they even make it past the pre-suit process. That’s what this system is designed to test.
The law front-loads everything: documentation, expert review, deadlines, and verification. If any one part falls short, the provider can challenge the claim—and the court has the power to stop it before it begins.
For firms that take on malpractice cases, this isn’t just prep work. The outcome of the pre-suit phase decides whether the case moves forward at all.
Pre-Suit Mistakes Can End a Case—We Don’t Let That Happen
The medical malpractice lawyers of Lesser, Landy, Smith & Siegel, PLLC has represented clients across Florida in medical malpractice matters where the outcome depended on getting the pre-suit phase exactly right. If you’re dealing with a potential claim, the first step isn’t filing a lawsuit—it’s making sure the case is properly built and statutorily sound.
Contact us at (561) 655-2028 or by email to discuss your situation. If the facts support a case, we’ll move quickly to get it positioned for success—before deadlines close the door.
