The Florida Medical Malpractice Act sets forth as a condition precedent to filing suit that a potential plaintiff conduct “a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” § 766.104(1), Fla. Stat. Prior to issuing notification of intent to initiate medical negligence litigation as required by 766.106, a claimant must “conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) [a]ny named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) [s]uch negligence resulted in injury to the claimant.” § 766.203(2), Fla. Stat. “Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion . . . , 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.” Id. And as the plain language of the Act requires, this information must be provided to each named defendant. See §§ 766.202(5) and 203(2), Fla. Stat.
The purpose of the presuit investigation notice with corroborating affidavit is not to simply give notice to a named
defendant of an impending medical malpractice suit; rather, “[t]he purpose of the medical expert opinion is to ‘assure the defendants, and the court, that a medical expert has determined that there is justification for the plaintiff’s claim . . . to corroborate that the claim is legitimate.’”
In a case decided by the Fifth District Court of Appeal State of Florida on January 23, 2026, Rodrigo Quintero had filed a wrongful death medical malpractice action against Dr. David Scott Wells and North Florida OBGYN in his capacity as the personal representative of his late wife’s estate and on behalf of himself and his minor child, alleging that his wife Iris died as a result of the medical negligence of Dr. Wells, an obstetrician and gynecologist, in his treatment of her uterine tumor.
Prior to filing his initial complaint, Quintero served his Notice of Intent to Initiate Litigation for Medical Malpractice on Dr. Wells and his employer, North Florida OBGYN. The corroborating affidavit from out-of-state obstetrician and gynecologist Dr. Marcela del Carmen asserted that, during the course and scope of his employment with North Florida OBGYN and while working at St. Vincent’s Medical Center, Dr. Wells was negligent in his treatment of Iris by failing to timely diagnose her, causing a delay in treatment, and negligently “[p]erforming a morcellation procedure which resulted in disease progression and worsening, metastasis and a recurrence of [Iris’s] Leiomyosarcoma to other parts of her body, including, but not limited to her lungs, upper abdomen and Pelvis, resulting in her ultimate death.” Importantly, Dr. del Carmen’s presuit affidavit contained no opinions regarding any negligent acts by North Florida OBGYN.
Dr. Wells and North Florida OBGYN moved to dismiss counts II, III, and IV with prejudice, arguing, in part, that allegations of negligence by North Florida OBGYN’s employees and/or agents in Count III were uncorroborated, because the expert’s affidavit attached to Plaintiffs’ presuit Notice of Intent only addressed clinical claims of medical negligence against Dr. Wells. They also argued counts II and IV should be dismissed because the informed consent claims were uncorroborated. The trial court denied the motion and ordered the defendants to answer the operative complaint. The defendants appealed.
The Florida appellate court stated: “The entirety of Dr. del Carmen’s affidavit addresses only the claimed clinical negligence of Dr. Wells in his treatment of Iris. The affidavit contains no opinion whatsoever as to any negligence by North Florida OBGYN or its medical support staff. As such, North Florida OBGYN as a named defendant received no advance notice of the impending litigation concerning its alleged negligence and was thereby deprived of the statutorily granted ability to investigate the claim(s) and resolve any meritorious claim without the need for adversarial litigation. As a result, dismissal of count III should have been granted … Likewise, Quintero’s allegations claiming lack of informed consent are not addressed in the corroborating affidavit regarding either Dr. Wells or North Florida OBGYN. As such, the affidavit failed to “sufficiently indicate the manner in which [Dr. Wells and/or North Florida OBGYN] . . . allegedly deviated from the standard of care” in that regard. See Tomas, 406 So. 3d at 1093–94. As a result, neither Dr. Wells nor North Florida OBGYN were afforded the opportunity to receive “adequate information for [them] to evaluate the merits of the claim.” See id. Therefore, counts II and IV should have been dismissed.”
Source Wells v. Quintero, Case No. 5D2024-3379.
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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