Beginning a Florida Medical Negligence Wrongful Death Claim

Attorney Answer

In Florida you cannot simply file a medical negligence lawsuit. Before a complaint may be filed, the law requires a sworn opinion from a qualified medical expert saying there are reasonable grounds — so the first real step is getting the records into an expert's hands, not into a courtroom.

Fla. Stat. § 766.106 requires you to serve a notice of intent to initiate litigation on each prospective defendant, and provides a 90-day presuit investigation period during which suit may not be filed. Fla. Stat. § 766.203(2) requires that the claim be corroborated by "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." That definition in turn incorporates Fla. Stat. § 766.102(5)–(6), which set the specialty and professional-time requirements for the expert and govern opinions about the standard of care of nurses and other support staff. In practice this means a physician in the right specialty must review your mother's records and swear to it before anything is filed.

The Florida Supreme Court's decision in Morris v. Muniz, 252 So. 3d 1143 (Fla. 2018) — itself a wrongful death malpractice case — is genuinely favorable to families here. The Court held that where the facts about the presuit expert's qualifications are unrefuted, dismissal for lack of a qualified expert is reviewed de novo; that a court may not dismiss for noncompliance with informal presuit discovery without first finding the defendant was prejudiced; and that an affidavit stating the statutory requirements on its face establishes qualification where the defense offers no contrary evidence. As the Court put it, "Questioning the veracity of an expert's sworn statements is not the same as presenting evidence that suggests that the claims in the affidavit are false." It quashed the dismissal and ordered the complaint reinstated, reiterating that presuit requirements should be construed in a way that favors access to courts.

Two structural points to raise on your very first call with a lawyer. A Florida wrongful death action is brought by the personal representative of the estate, not by family members individually, so someone must be appointed. And Florida's Wrongful Death Act limits which survivors may recover non-economic damages in medical negligence cases — adult children of a deceased parent have historically been excluded. Ask directly whether that limitation applies to your family, because it can determine whether the case is viable at all.

What you can do

1. Request complete medical records from every provider and facility involved, in writing, including nursing notes, medication administration records, imaging, and labs. 2. Obtain the death certificate and ask whether an autopsy was performed; if the death was recent and no autopsy has occurred, raise it immediately, because that option closes fast. 3. Have the estate opened and a personal representative appointed, since that is who must bring the claim. 4. Write a dated chronology of the final admission or course of treatment: symptoms, who was told, what was ordered, and what changed. 5. Get the file to a Florida medical malpractice firm for expert review now. Firms front the substantial cost of expert review, and they cannot serve a notice of intent without a supporting affidavit. 6. Do not sign any release, settlement, or arbitration agreement offered by a provider or its risk management department before that review.

⏱ Time limits apply. Under Fla. Stat. § 95.11(5)(c) a medical malpractice action must be commenced within 2 years of when the incident occurred or was, or should have been, discovered, and in no event later than 4 years from the incident; Fla. Stat. § 95.11(5)(e) sets a separate 2-year period for a wrongful death action. On top of that, the § 766.106 notice and the § 766.203(2) expert affidavit must be completed before filing, which consumes months. Which period governs depends on your specific facts, so the expert review needs to start well before the deadline appears close.