Florida's medical malpractice statutes are designed to balance the interests of healthcare providers and patients by establishing a framework that promotes the resolution of disputes before they escalate to court. A critical component of this framework is outlined in Florida Statute 766.104, which focuses on the pre-suit investigation process. This blog post will delve into the key provisions of F.S. 766.104, its implications for both plaintiffs and defendants, and some practical considerations for navigating this complex area of law.

Overview of F.S. 766.104

F.S. 766.104 sets the stage for medical malpractice litigation in Florida by requiring both potential plaintiffs and defendants to engage in a mandatory pre-suit investigation period. This process is intended to encourage parties to settle disputes without litigation and to ensure that only cases with merit proceed to court.

Key Provisions:
  1. Mandatory Pre-Suit Investigation: Before initiating litigation, both the claimant and the defendant are required to conduct a thorough investigation to determine whether there are reasonable grounds to believe that each accused healthcare provider was negligent in the care and treatment and that such negligence resulted in injury to the claimant.

  2. Corroboration by Medical Expert: The claimant must obtain a written opinion from a medical expert, corroborating that there are reasonable grounds to support the claim of medical malpractice.

  3. Notice of Intent to Initiate Litigation: The claimant must notify each prospective defendant by serving a notice of intent to initiate litigation, which must include the claimant's health records relevant to the alleged negligence and the corroborating expert opinion.

Implications for Plaintiffs and Defendants

For plaintiffs, F.S. 766.104 is significant as it sets a high bar for the initiation of a lawsuit. The requirement of a medical expert's corroboration ensures that only claims with a substantive basis in negligence are pursued, thereby reducing frivolous lawsuits. However, this also means that plaintiffs must be prepared to incur initial costs associated with securing expert opinions, which can be a barrier for some.

For defendants, this statute provides an opportunity to assess the potential liability and to consider settlement options before a full-blown lawsuit commences. It also offers a safeguard against meritless claims, as the requirement for expert corroboration may deter some unfounded lawsuits.

Practical Considerations

  1. Choosing the Right Expert: The selection of a medical expert is crucial, as the expert’s credibility and the relevancy of their specialty to the case can significantly impact the proceedings. It is advisable for claimants to choose experts with a robust background in the specific area of medicine involved in the claim.

  2. Timelines: Parties need to be aware of the specific timelines set forth in F.S. 766.104 for serving notices and completing the pre-suit investigation. Failure to adhere to these timelines can result in dismissal of the claim or other legal disadvantages.

  3. Settlement Discussions: The pre-suit period is also a strategic phase for negotiation. Given the detailed preparation required by F.S. 766.104, both parties come to the negotiation table with a clear understanding of the strengths and weaknesses of their positions, which can facilitate more meaningful settlement discussions.


F.S. 766.104 plays a pivotal role in the landscape of medical malpractice litigation in Florida. By requiring thorough preliminary investigations, the statute aims to weed out non-meritorious claims and promote fair resolutions. Both healthcare providers and potential plaintiffs must navigate this pre-suit process carefully, with a clear understanding of the legal obligations and strategic considerations it entails. As always, consulting with an experienced medical malpractice attorney can provide crucial guidance through this intricate process.

You can reach Hospital and Medical Malpractice Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected] or by text at (305) 929-8935.

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
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