The most confusing part of Florida medical malpractice law for non-lawyers is this: even after you find a lawyer and decide your case is real, you cannot just walk into a courthouse and file a lawsuit. Florida law requires a 90-day pre-suit notice and investigation period before any malpractice complaint can be filed. The clock for that 90 days runs separately from the statute of limitations clock. Both have to be tracked carefully. Here is what actually happens during those three months and why the process exists.
The Law: Florida Chapter 766
Florida Statute Chapter 766 governs medical malpractice claims. The relevant section is §766.106, titled "Notice before filing action for medical negligence; presuit screening period." It does two things: (1) it forces both sides to investigate the case before any lawsuit is filed, and (2) it requires a sworn affidavit from a qualified medical expert before the claimant can serve notice on the defendants.
The legislature's stated purpose when it passed Chapter 766 was to weed out non-meritorious cases early and encourage early settlement when liability is clear. Whether the law accomplishes either goal in practice is debated. What is not debated is that the process is mandatory, the deadlines are strict, and missteps can be case-ending.
The Sequence, Step by Step
Plain language: Before you can file a malpractice lawsuit in Florida, your lawyer has to (1) get a qualified doctor to swear under oath that there was malpractice, (2) send a formal notice to every defendant, and (3) wait 90 days while both sides investigate. Only then can the lawsuit be filed in court.
Records Review and Pre-Suit Investigation
Before any notice goes out, the firm gathers the complete medical record and has a qualified medical expert review it. The expert must be in the same specialty as the defendant (or a related specialty Florida law deems acceptable). The expert is paid out of pocket by the firm at this stage — the client does not advance the cost.
The Affidavit of Corroboration
If the expert agrees the case has merit, the expert signs a sworn affidavit (sometimes called a "verified written medical expert opinion") stating that there are reasonable grounds to believe the standard of care was breached and that the breach caused the harm. This affidavit is non-negotiable — without it, no pre-suit notice can be served and no lawsuit can be filed.
Notice of Intent
The firm serves a "Notice of Intent to Initiate Litigation" on each prospective defendant, along with a copy of the expert affidavit. The notice has to be served on every potential defendant. Missing a defendant is a recoverable error if caught in time, but it can complicate the case.
The 90-Day Investigation Period Begins
The day the notice is served, a 90-day clock starts. During this period, the statute of limitations is tolled (paused) — meaning if you served notice with 30 days left on your statute of limitations, you do not run out during the 90 days; the clock picks up where it left off when the 90 days end.
During the 90 days, the defendants and their insurance carriers conduct their own investigation. They can take unsworn statements, request additional records, and engage their own medical experts.
The Defendant Responds
At the end of the 90 days, each defendant must do one of three things:
- Reject the claim. A formal rejection clears the way for the lawsuit to be filed.
- Make an offer of admission of liability and arbitration. If the defendant offers binding arbitration, the case proceeds in that forum rather than a jury trial. Florida law caps damages in arbitrated malpractice cases.
- Make a settlement offer. If the offer is acceptable, the case resolves without a lawsuit ever being filed.
The Lawsuit Is Filed (or Not)
If the case is not resolved during pre-suit, the lawsuit is filed in state court after the 90-day period ends. The statute of limitations clock, which was tolled during the 90 days, resumes — meaning the case has to be filed before the original two-year (or four-year outer cap) period would have run out.
Why The 90 Days Is Longer Than It Looks
The pre-suit work that has to happen before the 90-day clock even starts often takes several months. A typical case timeline before notice is served includes:
- Records gathering: 30 to 60 days. Hospitals and providers are allowed time to respond to records requests.
- Internal review: 30 to 60 days. The firm reads the records, identifies the deviations, and works up the case theory.
- Expert retention and review: 60 to 120 days. Finding the right specialist, having them review the chart, and obtaining the affidavit is the longest single phase.
Total pre-notice work is typically three to six months. Add the mandatory 90 days, and a case can sit in pre-suit for six to nine months before a complaint is ever filed in court. That is why we tell families on the first call that the statute of limitations math has to be done early — not at the deadline.
What This Means for the Statute of Limitations Clock
Florida's medical malpractice statute of limitations is two years from the date the injury was discovered (or reasonably should have been discovered), with a four-year outer cap (statute of repose) from the date of the underlying incident, and narrow exceptions for fraud, concealment, and minors. The 90-day pre-suit period tolls the two-year clock — meaning the 90 days are added back at the end, not subtracted. But the four-year statute of repose is not tolled by pre-suit notice in most circumstances. We watch both clocks at once.
For more on Florida deadlines, see our companion piece on how long you have to file a medical malpractice case in Florida.
What Happens to the Defendants During Pre-Suit
From the defendants' perspective, the pre-suit notice triggers their own internal process. The hospital or practice notifies the insurance carrier, the carrier opens a claim file, defense counsel is assigned, and an investigation begins. Defendants conduct chart reviews, interview involved providers, retain their own medical experts, and assess settlement value. Many cases settle during the 90 days — the defense knows from its own expert review whether the case has merit, and a clean expert affidavit from the plaintiff is hard to defend at trial.
For cases that do not settle pre-suit, the 90 days serve as a kind of forced disclosure period. By the time a complaint is filed, both sides have a real understanding of the case — which is why post-filing depositions and discovery often move faster in Florida malpractice cases than in other types of personal injury cases.
Common Mistakes That Cost Cases
- Self-representing during pre-suit. The affidavit and notice requirements are not something a non-lawyer can prepare. Florida courts dismiss cases where pre-suit was botched.
- Failing to identify all defendants. If a doctor or facility is left out of the pre-suit notice and the statute of limitations later runs, that defendant cannot be added in.
- Using an unqualified expert. Florida has specific rules about who can sign the affidavit. The expert must be licensed, board-certified in the same specialty as the defendant (or a closely related one), and have practiced or taught medicine within the time frames the statute requires.
- Missing the statute of limitations during the back-and-forth. Some cases have less time on the clock than the pre-suit process itself takes. We do not take cases where the math does not work.
What This Means for Choosing a Lawyer
Florida pre-suit is not a generalist's project. The procedural details are unforgiving, the affidavit requirement is the single most common reason malpractice cases get dismissed, and the strategy of how to use the 90 days — whether to encourage settlement or position for litigation — depends on experience that takes years to build. A lawyer who handles two or three malpractice cases a year does not have that experience.
At The Alvarez Law Firm, Herb Borroto, M.D., J.D. reads the medical record in-house before we engage outside experts. That changes the affidavit process two ways. First, we know exactly what we need from the outside specialist because we already know what the chart shows. Second, when defendants see the affidavit, they understand that a board-certified physician with legal training has reviewed the case before they even respond. The signal is part of how cases resolve.
The Bottom Line
Pre-suit notice is mandatory in Florida medical malpractice cases. It takes 90 days minimum, often with three to six months of preparation before the clock even starts. Cases that resolve in pre-suit save everyone time and money. Cases that do not get litigated efficiently afterward because both sides have already invested in the medicine. The statute of limitations math has to be done early, the affidavit has to be solid, and the lawyer needs to have done this before.
If you are within two years of an event you think was malpractice — or within four years if there is fraud, concealment, or a minor involved — the right call is now. We will tell you on the first call whether the math works and whether the case warrants pre-suit investigation. Call (305) 444-7675 or use the contact form.