Medical Malpractice Presuit in Florida: The 766.106 Notice, Investigation, and 90-Day Clock

Before a single medical malpractice lawsuit can be filed in Miami-Dade County, Florida law requires an injured patient to complete a mandatory presuit process. This process (governed by Chapter 766 of the Florida Statutes, and in particular section 766.106) is unlike anything required in ordinary injury cases. A claimant must investigate the claim, obtain a corroborating opinion from a qualified medical expert, serve a formal notice of intent on every prospective defendant, and then wait out a 90-day investigation period before the courthouse doors open. Miss a step, and an otherwise strong case can be dismissed. Handle it correctly, and presuit becomes a powerful tool for building evidence and, in many cases, resolving the claim before litigation ever begins.

This page explains each stage of the Florida medical malpractice presuit process, the exact statutory deadlines that control it, and how those deadlines interact with the two-year statute of limitations, with concrete, worked examples. For a broader overview of these cases, visit our medical malpractice practice page.

Why Florida Requires Presuit Screening

The Florida Legislature enacted the presuit screening requirements to weed out unsupported claims and encourage early resolution of meritorious ones. Section 766.106(2), Florida Statutes, prohibits any claimant from filing a medical negligence lawsuit until the claimant has served a notice of intent to initiate litigation on each prospective defendant. Section 766.203(2) goes further: before that notice can even be served, the claimant must conduct a good-faith investigation and obtain corroboration of reasonable grounds (a verified written medical expert opinion) confirming that the health care provider was negligent and that the negligence caused injury.

These requirements apply to claims against physicians, hospitals, nurses, and other licensed health care providers throughout Miami. They also apply to certain non-physician providers; if your claim involves a chiropractic injury, our page on hiring a chiropractor malpractice attorney in Miami explains how presuit applies in that context. Note that claims arising from a defective product (such as a failed implant) may proceed under product liability law instead, which follows different rules; see our defective medical device lawyer page for the distinction.

Step One: The Presuit Investigation and Corroborating Expert Opinion

Under section 766.203(2), Florida Statutes, the claimant's presuit investigation must establish reasonable grounds to believe two things:

• The health care provider was negligent in the care or treatment of the patient; and
• That negligence resulted in injury to the patient.

Corroboration must come in the form of a verified written medical expert opinion from a medical expert as defined in section 766.202(6). Critically, the expert must satisfy the qualification requirements of section 766.102, which generally demand that the expert specialize in the same specialty as the defendant physician and have devoted professional time during the three years preceding the incident to active clinical practice, teaching, or research in that specialty. A cardiologist's affidavit will not corroborate a claim against a Miami neurosurgeon.

In addition, section 766.104(1) requires the claimant's attorney to certify that a reasonable investigation gave rise to a good-faith belief that grounds exist for an action against each named defendant. A complaint filed without that certificate is subject to dismissal.

Step Two: Serving the Notice of Intent Under § 766.106(2)

Once the investigation is complete and the corroborating opinion is in hand, the claimant serves a Notice of Intent to Initiate Litigation on each prospective defendant. Section 766.106(2)(a) requires that the notice:

• Be served by certified mail, return receipt requested (or as otherwise permitted), before the statute of limitations expires and at least 90 days before filing suit;
• Include, if available, a list of all known health care providers seen by the claimant for the injuries complained of after the alleged malpractice, and all providers seen during the two years prior to the alleged malpractice;
• Be accompanied by copies of all medical records relied upon by the claimant's corroborating expert; and
• Include the executed authorization for release of protected health information required by section 766.1065, in the exact form set out in that statute.

The section 766.1065 authorization deserves emphasis. Florida courts have held that a notice of intent served without a properly completed authorization can be treated as legally ineffective; meaning it does not toll the statute of limitations. Precision in the paperwork is not optional.

The 90-Day Clock: What Happens After Notice Is Served

Service of the notice of intent triggers the defendant's 90-day presuit investigation period under section 766.106(3)(a). During those 90 days:

• No suit may be filed. Section 766.106(3)(a) bars the claimant from filing suit against that defendant during the 90-day period.
• The statute of limitations is tolled. Under section 766.106(4), the limitations period is tolled as to all potential defendants during the 90 days (and during any agreed extension).
• The defendant must investigate. The prospective defendant or its insurer must conduct its own good-faith review and, at or before the end of the 90 days, respond.

Under section 766.106(3)(b), the defendant's response must take one of three forms:

1. Rejection of the claim: which must itself be corroborated by a verified written medical expert opinion under section 766.203(3);
2. A settlement offer; or
3. An offer to admit liability and arbitrate damages under sections 766.106(3)(b)3 and 766.207, an option with significant strategic consequences, because accepting arbitration caps noneconomic damages while rejecting a valid arbitration offer can limit recovery at trial.

If the defendant fails to respond within 90 days, the claim is deemed rejected by operation of section 766.106(3)(a).

Filing Suit After the 90 Days: The 60-Day Safety Valve

Section 766.106(4) contains one of the most important (and most misunderstood) deadlines in Florida malpractice practice. Upon receiving a rejection (or upon expiration of the 90-day period), the claimant has 60 days or the remainder of the statute of limitations, whichever is greater, in which to file suit.

A Worked Example on the Timeline

Suppose a surgical error occurs at a Miami hospital on March 1, 2024, and the patient knows of the injury that day. The two-year medical malpractice statute of limitations under section 95.11(4), Florida Statutes, would ordinarily expire on March 1, 2026.

• The claimant serves a compliant notice of intent on January 15, 2026: 45 days before the limitations deadline.
• The 90-day investigation period runs from January 15, 2026 through approximately April 15, 2026. The statute of limitations is tolled the entire time.
• The defendant rejects the claim on April 15, 2026. The claimant now has the greater of (a) the 45 days remaining on the limitations clock or (b) 60 days. Sixty days is greater, so suit must be filed by approximately June 14, 2026.

Now change one fact: the notice is served with 100 days left on the limitations clock. After the 90-day tolled period ends, the remaining 100 days exceed 60 days; so the claimant gets the full 100 days to file. The safety valve only guarantees a floor of 60 days; it never shortens the time you otherwise have.

The § 766.104(2) Automatic 90-Day Extension

Separately, section 766.104(2) allows a claimant to purchase an automatic 90-day extension of the statute of limitations by filing a petition with the clerk of the circuit court (in Miami, the Clerk of the Eleventh Judicial Circuit in Miami-Dade County) and paying the filing fee before the limitations period expires. No court order and no showing of good cause is required. This extension is frequently used when a client retains counsel close to the two-year deadline and time is needed to complete the presuit investigation and secure the corroborating expert opinion.

Informal Presuit Discovery Under § 766.106(6)

Presuit is not a waiting game. Section 766.106(6) authorizes both sides to use informal discovery mechanisms during the 90-day period, including:

• Unsworn statements of parties and treating providers;
• Written requests for documents, which must be produced within 20 days under section 766.106(6)(b)2;
• Physical and mental examinations of the claimant; and
• Written questions, limited to 30 including subparts, answerable within 20 days.

Failure to cooperate in good faith with presuit discovery carries teeth: under section 766.106(7), a party's failure to cooperate may be grounds to strike claims or defenses. Skilled use of presuit discovery lets a Miami claimant's attorney lock in facts, evaluate defenses, and position the case for settlement before a complaint is ever filed.

Key Deadlines at a Glance

Common Pitfalls That Sink Miami Malpractice Claims

• Unqualified corroborating experts. An affidavit from an expert who does not practice in the same specialty as the defendant can render the notice a nullity.
• Defective § 766.1065 authorizations. Deviating from the statutory form risks a finding that the notice never tolled the limitations period.
• Missing prospective defendants. Notice must be served on each prospective defendant; suing an unnoticed provider invites dismissal.
• Public hospital claims. Claims against Miami's public health care institutions may also require separate statutory notice to the sovereign under section 768.28(6), layered on top of Chapter 766 presuit, two independent notice regimes with independent deadlines.
• Comparative fault arguments. Defendants increasingly argue that a patient's own conduct (missed follow-ups, noncompliance with instructions) reduces recovery. Understand how Florida's modified comparative negligence rules under HB 837 can affect the value of a claim.

Why Presuit Is Where Miami Malpractice Cases Are Won

The presuit period is not a formality; it is the first battlefield. The corroborating expert opinion shapes the theory of the case. Presuit discovery previews the defense. The defendant's response, particularly an offer to arbitrate under section 766.207, forces high-stakes strategic decisions within tight windows. And every deadline in this article is jurisdictional in effect: a claimant who files suit without completing presuit, or who lets the tolled limitations period lapse after a rejection, may lose the claim entirely regardless of how egregious the malpractice was.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].