How Long Do You Have to Sue for Medical Malpractice in Florida?

I’m often asked, “How long do you have to file for medical malpractice in Florida?” For a viable case, the short answer is: as soon as possible and always before the applicable statutes of limitations and statute of repose expire.

Florida law sets three relevant deadlines on medical malpractice claims. There is a two-year statute of limitations, a four-year statute of repose, and a seven-year maximum for cases that involve fraud, concealment, or intentional misrepresentation by a prospective defendant (Fla. Stat. §95.11(4)(b)).

The SOL (statute of limitations) begins to run “from the time the incident is discovered or should have been discovered with the exercise of due diligence.” The statute of repose runs from the date the underlying act occurred, regardless of when the patient discovered, or should have discovered, the injury.

The only exception to these three-time bars applies to claimants who are minors age eight or younger. For these cases, the four-year and seven-year periods don’t bar a lawsuit filed before the child’s eighth birthday.

Florida Statute §766.104(2) allows you to add 90 more days to a medical malpractice claim’s statute of limitations and repose. This petition must be filed with the Clerk of Court in the county where you intend to file suit.

If multiple venues are proper, you can file the petition in more than one. The filing fee runs about $42. Once the court receives payment and the petition, it automatically grants a 90-day extension.

These deadlines aren’t always straightforward, and attempting to understand the statute of limitation for medical malpractice on your own can seem impossible. Even seasoned medical malpractice attorneys wrestle with difficult factual analysis where reasonable minds can disagree. To protect your rights, filing sooner is almost always better than waiting.

But unlike most personal injury claims, suing for medical malpractice in Florida satisfies a detailed set of legal requirements before you can even file. The rest of this article discusses a few of these challenges to filing.

Is It Medical Malpractice?

Before anything else, it’s worth pausing to confirm the case qualifies as medical malpractice under Chapter 766.

First, the prospective defendant must be a healthcare provider. I go in depth about who qualified in my article on The Complete List of “Healthcare Providers” under The Florida Medical Malpractice Act.

Second, the claim itself must be sound medical malpractice, not ordinary negligence. As the Florida Supreme Court put it, a wrongful act occurring in a medical setting doesn’t automatically make it malpractice. For a claim to quality, the act must be directly related to medical care or services requiring professional judgment or skill. Meaning the plaintiff must show the conduct breached the prevailing professional standard or care, as established through qualified medical expert testimony (The National Deaf Academy v. Townes, Fla. 2018.)

Meeting Chapter 766’s Requirement to File

Florida medical malpractice lawsuits must navigate the detailed and often confusing framework laid out in Chapter 766 of the Florida Statutes.

As a starting point, you can’t file a medical malpractice lawsuit until your attorney has conducted a reasonable investigation to establish a good-faith belief that negligence occurred in your care or treatment. Even then, the suit can’t move forward until a notice of intent to sue goes out to the prospective defendants, followed by a mandatory 90-day waiting period.

What counts as a reasonable investigation? Florida law requires the claimant to verify there are reasonable grounds to believe: (a) a named defendant was negligent in the claimant’s care or treatment, and (b) that negligence caused the claimant's injury.

Can an attorney make that determination without medical expert input?

No. The law requires corroboration through a verified written medical expert opinion from a qualified expert as defined in s. 766.202(6) before a notice of intent can even be sent.

Given these hurdles, it’s critical to contact a medical malpractice attorney as soon as possible. The Florida medical malpractice statute of limitations makes urgency a must. With a shorter window than typical negligence claims and a more demanding pre-suit investigation process, early consultation gives your case the best chance at a thorough, well-supported investigation.

Time works against you in these cases in a way that most people never expect, because they are already dealing with so much.

Florida forces you to build the case before you’re even allowed to file it, all while a two year clock keeps moving forward.

I’ve sat across from families who unfortunately waited a few extra weeks to ‘make sure,’ only to watch that window sadly close on them before the investigation can be finished.

It’s my job to start that clock-beating work the day you reach out to me, or walk in. Pick yp the phone before you decide you have a case and call. Let my expertise help you make that determination, side by side.

Legal Advice Disclaimer:

I’m a licensed attorney in Florida. I provide legal advice, but only to my clients — people who have a written agreement with me. I don’t provide legal advice through this site.

The articles you see here — or anywhere else online — aren’t any different from reading a newspaper or magazine article by a lawyer, or watching a lawyer on a television show talk about a case. I might write about legal issues relevant to your situation, but professional legal advice requires an in-depth discussion with you about your case, a thorough investigation into all the relevant facts, and substantial research into the relevant laws.

Sources:

Fla. Stat. §95.11(4)(b) — leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html

Fla. Stat. §766.104 — leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.104.html

Fla. Stat. §766.106 — leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.106.html

Fla. Stat. §766.202(6) — Medical Expert Definition — leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.202.html

Fla. Stat. §766.203(2) — leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.203.html

The National Deaf Academy v. Townes, 242 So. 3d 303 (Fla. 2018) — acis.flcourts.gov/portal/court/68f021c4-6a44-4735-9a76-5360b2e8af13/case/0ea40839-46af-431f-b292-955bfc011850