Florida Medical Malpractice: Pre-Suit Rules and Deadlines

A Florida medical malpractice claim must normally be started within 2 years of when the injury was, or should have been, discovered, and never more than 4 years after the treatment. Before any lawsuit, you must investigate the claim, get a sworn opinion from a qualified medical expert, and send every prospective defendant a notice of intent, which starts a 90-day pre-suit period during which no suit can be filed. Two Florida rules surprise many families: adult children cannot recover for their own grief when a parent dies from malpractice, and the Constitution guarantees the patient keeps at least 70% of the first $250,000 recovered. This guide sets out every step and deadline from Chapter 766 of the Florida Statutes.

This guide is general information, not legal advice. Medical malpractice deadlines are strict and complex; speak to a Florida lawyer as soon as you suspect a medical error.

The short version

• Deadline: 2 years from discovery, at most 4 years from the incident, extended to 7 years if fraud or concealment hid the injury (s. 95.11(5)(c)).
• Children: the 4-year cap does not bar a claim brought on a child's behalf before the child's 8th birthday.
• Expert first: the notice of intent must come with a verified written opinion from a medical expert (s. 766.203(2)).
• 90 days: no lawsuit until 90 days after the notice is delivered; the limitation period is paused meanwhile (s. 766.106).
• Wrongful death: adult children cannot recover for their own lost companionship and pain when a parent dies from medical negligence (s. 768.21(8)).
• Fees: the patient keeps at least 70% of the first $250,000 and 90% of anything above, unless they waive this (Florida Constitution, Article I, section 26).

Key deadlines at a glance

See every other Florida deadline in our statutes of limitations table.

What counts as medical malpractice in Florida?

A health care provider's breach of the prevailing professional standard of care that causes injury or death; a bad outcome alone is not malpractice. The standard is the level of care that reasonably prudent similar providers recognize as acceptable in the circumstances (s. 766.102(1)). You must prove both the breach and that it caused your injury, usually through expert testimony. Common examples include surgical errors, missed or delayed diagnosis, medication errors and birth injuries.

What are the steps before a malpractice lawsuit?

Investigate, get an expert's sworn opinion, send the notice of intent, wait 90 days, and only then sue if the claim has not been resolved.

1. Get the medical records. Florida law gives patients the right to copies of their records.
2. Pre-suit investigation: your lawyer must have reasonable grounds to believe each defendant was negligent and that the negligence caused the injury (s. 766.203(2)).
3. Expert opinion: a verified written opinion from a qualified medical expert, usually in the same specialty, must corroborate those grounds and is sent with the notice.
4. Notice of intent: served on each prospective defendant by certified mail, tracked mail, a commercial carrier or a process server (s. 766.106(2)). Serving it pauses the limitation period.
5. 90-day review: the defendant's insurer investigates and may ask you to attend a screening panel or a medical examination.
6. Response: by day 90 the defendant rejects the claim, offers a settlement, or offers to arbitrate with liability admitted.
7. Lawsuit: if there is no settlement, you may file suit within the remaining time.

Statements and documents produced during this pre-suit process cannot be used as evidence in the later lawsuit (s. 766.106(5)).

Should I accept an offer to arbitrate?

An arbitration offer admits liability, so you are guaranteed compensation, but it caps noneconomic damages at $250,000 per incident and limits wage loss to 80%. In voluntary binding arbitration under section 766.207, the defendant also pays interest, the costs of the arbitration, and your attorney fees up to 15% of the award. Weigh the certainty against what a jury could award; ask your lawyer to run the numbers for your case.

Is there a cap on malpractice damages in Florida?

Not in court. The noneconomic damage caps written into section 766.118 were struck down by the Florida Supreme Court, in 2014 for wrongful death cases (Estate of McCall v. United States) and in 2017 for personal injury cases (North Broward Hospital District v. Kalitan). Caps still apply in the voluntary arbitration described above, and claims against public hospitals are limited by the sovereign immunity caps of section 768.28.

Who can recover when a patient dies from malpractice?

Florida's Wrongful Death Act applies, but section 768.21(8) bars adult children from recovering for their own lost companionship and pain over a parent's death caused by medical negligence, and bars parents from recovering those damages for an adult child's death. The estate can still recover medical and funeral expenses and other losses, and a surviving spouse and minor children keep their claims. This rule is in the 2025 Florida Statutes; check with a lawyer whether it still applies to your case, as it has been the subject of repeated repeal efforts.

How much does a malpractice lawyer cost?

Most work on a contingency fee, and the Florida Constitution limits it: the patient keeps at least 70% of the first $250,000 of all damages, and 90% of everything above $250,000, after reasonable costs, unless the patient knowingly waives the limit. These cases are expensive to bring, because expert reviews and testimony cost a lot, so ask how costs are advanced and repaid. Read how injury lawyers are paid in Florida for the questions to ask.

Are birth injuries handled differently?

Some are: certain birth-related neurological injuries go to the Florida Birth-Related Neurological Injury Compensation Association (NICA) instead of the courts, when the doctor and hospital participate in that no-fault program (ss. 766.301-766.316). A lawyer can tell you whether NICA is the exclusive remedy for your child's injury.

How do I choose a malpractice lawyer?

Choose a lawyer who handles medical negligence regularly and can fund the expert review; ask how many pre-suit notices they have served in the last year and how often cases go to trial. Board certification in civil trial law from The Florida Bar shows peer-reviewed trial experience. Compare personal injury lawyers in our rankings for Miami, Coral Gables, Fort Lauderdale, Orlando, Tampa and Jacksonville. See also Florida personal injury rules and how long an injury case takes.

Checklist if you suspect malpractice

1. Write down dates, providers, what you were told and when you first suspected an error.
2. Request complete copies of your medical records and bills.
3. Keep any medication, device or packaging involved.
4. Do not sign releases or settlement papers from a provider or insurer before getting advice.
5. Calculate the 2-year date from when you discovered the injury, and talk to a lawyer well before it: the expert review takes time.

Frequently asked questions

How long do I have to sue a doctor in Florida?

Generally 2 years from when you knew or should have known of the injury and its possible cause, and no more than 4 years from the treatment, or 7 years if fraud or concealment hid it. The notice of intent must be served within that time.

Do I need an expert before suing?

Yes. Florida requires a verified written opinion from a qualified medical expert, sent with the notice of intent, confirming reasonable grounds for the claim.

Can I sue a hospital owned by the government?

Yes, but claims against public hospitals are subject to sovereign immunity limits of $200,000 per person and $300,000 per incident, and a written claim to the agency is required first (s. 768.28).

Can adult children sue for a parent's death from malpractice?

Under section 768.21(8), adult children cannot recover damages for their own lost companionship and pain. The estate can still recover other losses such as medical and funeral expenses.

What if I discovered the error years later?

The 2-year period runs from discovery, but the 4-year outer limit still applies unless fraud, concealment or intentional misrepresentation prevented you from discovering it, which extends it to 7 years.

Does the 90-day period count against my deadline?

No. The limitation period is paused from when the notice is served until the 90 days end, and during any agreed extension.

Sources

• Florida Statutes, section 95.11(5)(c) (medical malpractice limitations)
• Florida Statutes, section 766.102 (standard of care)
• Florida Statutes, section 766.106 (notice before filing; 90-day period; tolling)
• Florida Statutes, section 766.203 (pre-suit investigation; expert opinion)
• Florida Statutes, section 766.207 (voluntary binding arbitration)
• Florida Statutes, section 768.21 (wrongful death damages)
• Florida Statutes, section 768.28 (sovereign immunity limits)
• Florida Statutes, sections 766.301-766.316 (birth-related neurological injuries)
• Constitution of the State of Florida, Article I, section 26 (claimant's right to fair compensation)