Before a medical malpractice lawsuit can be filed in Florida, state law requires a structured Medical Malpractice Pursuit process. It isn’t window dressing, it’s a gatekeeping system designed to confirm there’s a valid claim, narrow the issues, and encourage settlement. Victims and families often feel stalled by the steps, but understanding what happens (and why) can make the timeline feel purposeful rather than opaque. This article outlines the Florida presuit requirements, from expert review and notice to targeted evidence gathering, so injured patients can see how strong cases are built and why experienced counsel, such as the team at Michles & Booth, treat pursuit as the foundation for everything that follows.
Florida’s presuit process explained for malpractice victims
Florida’s presuit requirements live in Chapter 766 of the Florida Statutes. In short, a claimant can’t simply file a complaint. They must first complete a reasonable investigation, support the claim with a qualified medical expert’s written opinion, send a notice of intent to each prospective defendant, and then pause while the defendants investigate.
Key steps at a glance
- Reasonable investigation of the claim (Fla. Stat. § 766.203)
- Corroborating written medical expert opinion verifying reasonable grounds for negligence
- Notice of intent to initiate litigation served on each potential defendant (Fla. Stat. § 766.106)
- A 90-day presuit investigation period for defendants: the statute of limitations is tolled during this time
- Informal discovery (records, written questions, unsworn statements, and examinations) per presuit rules
- Defendant’s response at the end of 90 days: reject, make a settlement offer, or admit liability and offer to arbitrate
Timing matters
Florida’s standard statute of limitations for medical negligence is generally two years from when the incident was discovered or should have been discovered, but not more than four years from the date of the incident (with limited exceptions). When a claimant mails the notice of intent, the limitations period is tolled for 90 days. After a rejection, the claimant has the greater of 60 days or the remainder of the limitations period to file suit.
Why this structure? Presuit is intended to filter out unsupported claims and promote early resolution. In practice, it also sharpens well‑founded cases by forcing both sides to evaluate liability, causation, and damages early, before litigation costs skyrocket.
Expert review as a prerequisite for filing lawsuits
Florida law requires that a medical malpractice claim be corroborated by a qualified medical expert’s written opinion before a notice goes out. Skipping or short‑changing this step can doom a case.
Who qualifies as an expert
Under Fla. Stat. § 766.102, the expert must:
- Practice (or have practiced) in the same or a similar specialty as the defendant within the preceding three years, or teach in that field
- Be licensed and, if the defendant is a specialist, typically share the same specialty
- Be prepared to testify on the applicable standard of care, breach, and causation
What the opinion must do
The opinion should state there are reasonable grounds to believe that the healthcare provider was negligent and that the negligence caused injury. Strong opinions are specific: they identify the breached standard (for example, failure to order a timely CT for suspected stroke), link it to the harm, and rule out key alternative causes.
Practical considerations
- Independence matters. Courts and insurers discount “hired gun” affidavits that read like form letters.
- Early expert input can drive evidence requests (e.g., EHR audit trails, medication administration records) that presuit allows.
- Costs are real. Top specialists can charge thousands for review: experienced firms budget accordingly and focus on truly viable claims.
Firms like Michles & Booth often consult multiple experts where liability is complex (e.g., hospital nursing protocols plus surgeon judgment), ensuring each discipline is covered before the notice ever leaves the office.
Notice requirements before initiating legal claims
The notice of intent to initiate litigation is more than a heads‑up, it triggers the 90‑day presuit investigation and opens the informal discovery lane.
What the notice should include
- Identification of each prospective defendant and a concise description of the claim
- A list of all known healthcare providers who treated the claimant for the injuries at issue
- Copies of relevant medical records in the claimant’s possession or a representation that they’ve been requested
- A HIPAA‑compliant authorization that permits defendants to obtain pertinent medical records (see Fla. Stat. § 766.1065)
- The corroborating medical expert opinion (commonly attached to the notice under § 766.203)
The notice must be served (often via certified mail with return receipt) on every potential defendant, physicians, practice groups, hospitals, and contractors, because leaving out a responsible party can complicate recovery later.
Tolling and next steps
Once the notice is mailed, the statute of limitations is tolled for up to 90 days while defendants investigate. During this time, they may request records, serve written questions, schedule unsworn statements, or request a physical examination. At the end of the period, defendants must reject the claim, make a settlement offer, or admit liability and propose arbitration.
Common pitfalls to avoid
- Defective authorizations for records that delay the defense investigation
- Serving the wrong entity (e.g., confusing a hospital system with a separate physician group)
- Bare‑bones expert opinions that fail to show causation
An organized, compliant notice signals to insurers that the claimant is serious, which can materially improve early negotiation posture.
Evidence gathering strategies under presuit rules
Presuit is an opportunity to assemble the story with precision. The rules allow targeted, efficient discovery, if used wisely.
Build the medical chronology
- Collect complete records from all relevant providers. Florida law requires timely production of medical records: persistent noncompliance can have consequences in litigation.
- Create a timeline that aligns vitals, orders, lab results, imaging, and notes. Small gaps, like an unexplained 90‑minute delay to read a CT, often matter most.
Capture digital footprints
- Request EHR audit trails, medication administration logs, and order timestamps where they’re relevant to timing or missed alerts.
- Seek PACS imaging metadata when radiology timing is disputed.
Use informal discovery tools
- Unsworn statements: Presuit allows interviews of parties and certain witnesses without a court reporter’s formalities. Good preparation ensures clarity, not surprises.
- Written questions and record requests: Narrow and specific requests save time and prompt useful disclosures.
- Physical examinations: In injury and causation disputes, defense exams may be requested: claimants’ counsel can coordinate to protect the record and the client.
Proving damages early
- Document wage loss, out‑of‑pocket costs, future care needs, and day‑in‑the‑life details.
- Where appropriate, obtain preliminary life‑care planning input and economic projections. A grounded damages model makes presuit demands credible.
The goal is simple: give the defense enough high‑quality information to evaluate liability and write authority, without giving up strategic leverage that belongs in full discovery if the case proceeds.
Impact of presuit procedures on settlement negotiations
Handled well, presuit often sets the table for settlement. Handled poorly, it cements the defense’s skepticism.
Why presuit moves the needle
- It forces an insurer to conduct a parallel investigation within 90 days, during which reserves are set and settlement authority is discussed.
- A well‑supported expert opinion and tight medical chronology reduce “unknowns,” the main driver of lowball offers.
- Florida’s framework encourages defense counsel to identify exposure early: admitting liability and proposing arbitration is one option when fault is clear.
Practical negotiation dynamics
- Anchoring with a documented demand package, liability theory, causation analysis, and damages exhibits, can lead to meaningful offers before suit.
- Early mediation during or shortly after the presuit window is common when both sides see risk.
- Comparative fault or complex causation may keep offers conservative: in those cases, counsel preserves momentum by using the 60‑day post‑rejection window to file promptly and maintain pressure.
Since Florida’s courts have struck down broad non‑economic damage caps in medical malpractice cases, evaluations focus hard on case‑specific factors: severity of injury, clarity of breach, and the credibility of experts. Firms like Michles & Booth leverage presuit to shape those perceptions, often improving results regardless of whether a settlement happens early or after suit is filed.
