When a party files a lawsuit in Florida alleging claims arising from the care or services of a medical provider, or the failure to render care or services, the party must comply with the requirements of the Medical Malpractice Reform Act (“Act”), chapter 766, Florida Statutes.
Florida Medical Malpractice Reform Act
766.102 Medical negligence; standards of recovery; expert witness.—
(1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.
766.106 Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.
(b) “Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c) “Insurer” includes the Joint Underwriting Association.
(2) PRESUIT NOTICE.—
(a) After completion of presuit investigation pursuant to s. 766.203(2) and before filing a complaint for medical negligence, a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence by at least one of the following verifiable means:
1. United States Postal Service certified mail, return receipt requested;
2. United States Postal Service mail with a tracking number;
3. An interstate commercial mail carrier or delivery service; or
4. Any person authorized by law to serve process.
766.203 Presuit investigation of medical negligence claims and defenses by prospective parties.—
(1) APPLICATION OF PRESUIT INVESTIGATION.—Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence claims and defenses. This shall include:
(a) Rights of action under s. 768.19 and defenses thereto.
(b) Rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28 and defenses thereto.
(2) PRESUIT INVESTIGATION BY CLAIMANT.—Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.
In a medical malpractice appeal decided by the First District Court of Appeal State of Florida in a Per Curium filed on August 13, 2025, Holly Brothers and Jaidon Naquin, who were parents of an ailing newborn son, asserted that the Act did not apply to their common law intentional infliction of emotional distress allegations against various medical professionals who stopped treating their son prior to his death in the hospital. The trial court disagreed and ruled that chapter 766 applied and therefore dismissed their lawsuit for failing to comply with the Act’s requirements.
The Florida appellate court affirmed the trial court’s ruling because the allegations in the second amended complaint arose from the plaintiffs’ disagreement and distress with the defendants’ medical decision not to resuscitate or offer life-saving measures to their son after an initial examination. The Florida appellate court held: “the core legal inquiry
here would involve a medical negligence question evaluating the acceptability of Appellees’ medical treatment decisions under the medical malpractice standard of care. § 766.102(1), Fla. Stat. (2025) (“The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”).”
Source Brothers v. Percy, D.O., No. 1D2024-0817.
If you or a loved one have suffered serious harm (or worse) as a result of medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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