Medical Malpractice in Florida: what actually drives the file, the first questions that deserve a slower answer, and what usually shifts earliest

Florida medical malpractice law went through a major constitutional shift in 2017. In North Broward Hospital District v. Kalitan (Fla. 2017), the Florida Supreme Court struck down the non-economic damages cap that the Legislature had imposed in 2003 (amended 2011) as a violation of the Florida Constitution's equal protection guarantee. The court held that the cap was not rationally related to a legitimate government interest because the asserted crisis that justified it — rising malpractice insurance rates — had not in fact materialized. As a result, Florida currently has no statutory cap on non-economic damages in medical malpractice cases — a complete reversal from the capped regime that existed for over a decade.

Florida's Pre-Suit Investigation Requirement

Florida's Medical Malpractice Act (Fla. Stat. §§ 766.101–766.316) imposes a mandatory pre-suit investigation and notice process before a medical malpractice lawsuit can be filed. The process works as follows:

1. Notice of intent (§ 766.106): The claimant must serve each prospective defendant with a "notice of intent to initiate litigation" at least 90 days before filing suit. This notice triggers the pre-suit investigation period.
2. Corroborating expert opinion (§ 766.102): Before or along with the notice of intent, the claimant's attorney must obtain a written expert medical opinion from a qualified expert verifying that there are reasonable grounds to believe that a negligent act occurred. This opinion must be from a physician in the same specialty as the defendant and must be filed with the court when suit is filed.
3. Investigation period: After receiving the notice, defendants have 90 days to conduct their own investigation and decide whether to reject the claim, make an offer, or admit liability. Settlement discussions during this period are privileged from discovery.

Missing the pre-suit requirements is fatal — courts have consistently dismissed cases filed without proper pre-suit notice. The 90-day period also affects statute of limitations calculations: the SOL is tolled during the pre-suit investigation period.

Statute of Limitations and Repose

Medical malpractice claims in Florida must be filed within 2 years of when the claimant discovered, or through use of reasonable care should have discovered, the injury giving rise to the claim. Fla. Stat. § 95.11(4)(b) sets an absolute repose period of 4 years from the negligent act (extended to 7 years if fraud, concealment, or intentional misrepresentation prevented discovery, and to 10 years for cases involving intentional concealment). The combination of the 2-year discovery rule and the 4-year repose means that even if a patient discovers the injury late, the absolute maximum filing window is 4 years from the negligent act (absent concealment). Medical malpractice SOL calculations in Florida are complex and frequently litigated — toll provisions and the pre-suit notice period interaction require careful analysis.

Government Hospital and Sovereign Immunity

Claims against government-operated hospitals (county, public university hospital systems, hospital districts like North Broward, Shands/UF Health) in Florida involve sovereign immunity considerations. Florida has waived sovereign immunity for tort claims under § 768.28, but with a damages cap: per-claimant cap of $200,000, per-incident cap of $300,000. A claimant can seek a legislative claims bill for amounts above the cap, but these bills require separate action by the Florida Legislature and are rarely granted in full. Claims against government hospitals also require a written notice of claim to the agency head or attorney within 3 years of the date of the act (§ 768.28(6)(a)) — a stricter deadline than the general malpractice SOL.

Wrongful Death Medical Malpractice

Florida's Wrongful Death Act (§ 768.21) controls damages in malpractice cases resulting in death. Florida is notable for an unusual restriction: adult children (over 25) and parents of adult decedents (over 25) cannot recover for pain and suffering (non-economic damages) in wrongful death medical malpractice cases. This survives the Kalitan ruling because the Wrongful Death Act, not the general malpractice caps, limits recovery. Only the surviving spouse, minor children, and parents of minor children can recover non-economic damages in wrongful death malpractice cases — a significant limitation that materially affects damages calculations when the deceased was an adult with adult children.