Florida's Medical Malpractice Presuit Process

The process runs in sequence, and each stage has its own clock.

Chapter 766 requires the claimant to conduct an investigation establishing reasonable grounds to believe the provider was negligent and that the negligence caused the injury.^[1]

In practice, that means the complete medical records, from every provider who touched the care, reviewed by physicians who know what the standard required. Incomplete records produce failed investigations, and hospitals do not always produce complete records on the first request. Chasing down the missing imaging, the audit trail, and the nursing notes is unglamorous work that decides cases.

The claim must be corroborated by a verified written medical expert opinion, served with the notice of intent. Florida's qualification rules are demanding: in general, the corroborating expert must practice in the same specialty as the defendant and meet strict experience requirements.

The affidavit is also discoverable, and the expert's history of prior disqualifications must be disclosed. A weak affidavit from a marginal expert invites a motion attacking the presuit process itself, which is why the choice of corroborating expert is a strategic decision, not a formality.

Defendants live under a mirror-image rule: a rejection of the claim must be corroborated by the defense's own verified expert opinion. The presuit phase is, in effect, the first expert-versus-expert round of the case.

Formal notice goes to every prospective defendant by verifiable delivery, with the records, a list of the claimant's providers, and executed authorizations. From delivery, no suit may be filed for 90 days while the defense investigates.^[2]

The window has teeth on both sides. Informal presuit discovery runs in both directions: unsworn statements, document demands answerable within 20 days, and examinations. Refusing reasonable presuit discovery carries sanctions. But nothing generated in presuit evaluation is admissible later, which makes the window a genuine investigation rather than a trap-laying exercise.

Two protections matter for the deadline math. The statute of limitations tolls during the 90-day window, and after a rejection the claimant has 60 days or the remainder of the limitations period, whichever is greater, to file. Those rules save cases, but they do not create time for an investigation that started too late. The Florida med-mal deadline rules and the presuit process have to be run together.

By the end of the window, each defendant must do one of three things, and the third option hides the sharpest edges in Chapter 766.

Rejection sends the case to court, and it must come with the defense expert's corroborating affidavit. Silence through day 90 counts as rejection.

Settlement ends it, on terms the presuit investigation has now equipped both sides to price.

Arbitration is the fork. A defendant may offer voluntary binding arbitration on damages, which concedes liability but caps noneconomic damages at $250,000 per incident under a percentage-based formula, bars punitive damages, and puts the arbitration costs and a capped fee award on the defendant.^[3]

The consequences of refusing run both ways.^[4] A defendant who refuses a claimant's arbitration offer faces trial damages plus attorney's fees up to 25 percent of the award. A claimant who refuses a defendant's arbitration offer walks into trial with noneconomic damages capped at $350,000 per incident. In a catastrophic injury case, accepting or refusing that offer can be a seven-figure decision, and it must be made on a 30-day clock.

This is the part of the process where experienced counsel earns the fee.

Defendants do not offer arbitration to be generous. Families hear 'liability admitted' and want to say yes. Sometimes yes is right. Sometimes it trades a jury's verdict for a quarter of it. The only honest answer comes from valuing the case under both sets of rules first. A seven-figure decision should never be made on instinct. Whether to accept is arithmetic, not emotion, and we run the numbers before the clock runs us.