The Presuit Requirements for a Florida Medical Negligence Lawsuit

Florida medical malpractice claims require claimants to demonstrate that their medical provider made an error that fell below the “prevailing professional standard of care.” This standard of care varies depending on the provider’s specific care, skill, surrounding circumstances and incident. Thus, courts view the prevailing standard of care in light of the unique circumstances of the particular situation. Further, medical malpractice claims require claimants to establish causation. Even if a provider’s standard of care fell below the prevailing standard, claimants must still prove that the mistake was not inconsequential.

Medical malpractice can stem from a variety of situations. Under Florida law, misdiagnosis, surgical errors, failure to treat, anesthesia errors, medication errors, and specialist malpractice can precipitate a medical malpractice lawsuit. However, successfully recovering damages requires strict adherence to Florida’s various medical malpractice procedural and evidentiary laws.

The Supreme Court of Florida recently considered the statutory presuit notice requirement under section 766.106. In this case, the plaintiff mailed the notice before the expiration of the limitations period; however, the defendant did not receive the notice until after the period would have expired, absent tolling. At issue is whether the statute of limitations is tolled upon the claimant’s mailing of the presuit notice of intent to begin litigation.

The court reviewed two relevant Florida cases, which support the finding that mailing the presuit notice triggers tolling. However, to ensure the prospective defendant receives the benefit of the entire investigation period, the 90 days is measured from the date of receipt of the notice. Thus, the relevant limitations period is also tolled between mailing and receipt. In the case at hand, the court held that under Florida Statute 766.106 and Florida Rule of Civil Procedure 1.650, the timely mailing of intent to initiate, not the receipt of the notice, is what begins the tolling.

In addition to presuit notice, the parties must engage in presuit investigation. The presuit investigation is the first step to determining what parties are liable for negligence. The defendant’s insurer must also investigate and determine liability in their inquiry. If a potential defendant intends to reject a claim, they must submit a written medical opinion corroborating their position that there are no reasonable grounds for a lawsuit.

Consult with an Experienced Florida Medical Malpractice Lawyer

If you or someone you know has been the victim of medical negligence, contact the lawyers at Friedman Rodman Frank & Estrada. The experienced attorneys on our team have an extensive history of successfully representing South Florida medical malpractice claimants. In addition to medical malpractice, our firm handles Florida personal injury, wrongful death, workers’ compensation, premises liability, and civil assault cases. Our lawyers have secured significant amounts of compensation on behalf of Florida injury victims. We have a firm grasp on the strict procedural and substantive laws that govern these complex cases. Contact our office at 877-448-8585 to schedule a free initial consultation with an attorney on our team.


Contact Information