The 90-Day Wait Before Filing Suit

Florida Requires an Investigation Before a Lawsuit

Reviewed by Andrew Needle and Andrew Ellenberg

Medical malpractice claims in Florida cannot go straight to a courtroom. Under Florida Statute Section 766.106, a claimant must send a notice of intent to the prospective defendant before filing suit, and the defendant then has 90 days to conduct a presuit investigation into the claim before litigation can move forward. This requirement applies to essentially every medical malpractice case in the state, regardless of how clear the underlying facts may seem. Skipping or rushing this step is one of the more common reasons an otherwise strong claim runs into procedural trouble later on.

What Happens During the 90-Day Window

The presuit period is not simply a waiting game. During those 90 days, the defendant or their insurer must review the claim, often through an internal claims adjuster or outside medical consultation, and respond by rejecting the claim, offering a settlement, or proposing arbitration limited to the amount of damages. The statute of limitations is tolled during this entire period, which protects a claimant from losing time on the filing deadline while the investigation runs its course. If the defendant fails to respond at all within the 90 days, the law treats that silence as a final rejection of the claim, which then allows the claimant to proceed toward filing suit.

Why Medical Malpractice Plays by Different Fault Rules

Florida’s 2023 tort reform changed how fault gets divided in most negligence cases, but medical malpractice was carved out of that change. General negligence claims now follow a 51% bar, where a plaintiff found more than half at fault recovers nothing. Medical malpractice claims, by contrast, still follow the older pure comparative fault rule, meaning a patient found mostly at fault for their own outcome, such as failing to follow post-treatment instructions, can still recover a reduced share of damages rather than losing the claim entirely. This distinction is frequently overlooked, since insurers sometimes argue the newer 51% standard applies when it legally does not.

Documents That Matter Most in the Presuit Period

Building a strong presuit notice typically requires gathering specific records before the notice is even sent, including:

• Complete medical records from the provider in question
• A written opinion from a qualified medical reviewer supporting the claim
• Records from any other providers who separately treated related complications from the injury
• A clear and complete timeline connecting the alleged act of negligence to the resulting harm

A Fort Lauderdale medical malpractice lawyer typically assembles these materials well before the notice goes out, since incomplete records can weaken a claim’s position during the defendant’s 90-day review period.

Why Missing a Presuit Step Can Derail a Claim

Failing to follow the presuit notice requirements correctly, or failing to cooperate during the defendant’s investigation, can give the opposing side grounds to have the case dismissed or important evidence excluded later in litigation. The team at Needle & Ellenberg, P.A. manages this process carefully from the outset, since a technical misstep early on can undermine a claim that is otherwise strong on the medical facts. Courts in Florida have shown little patience for claimants who treat the presuit requirements as a mere formality rather than a mandatory step.

Getting the Presuit Process Started the Right Way

Because the 90-day investigation period is mandatory and the statute of limitations only pauses once proper notice is served, starting this process promptly after discovering a potential injury matters more than it might first appear to someone unfamiliar with the deadline. A Fort Lauderdale medical malpractice lawyer can help determine whether a case has enough support to proceed before the notice is sent, since a rejected claim can still be refiled but only within the time that remains on the underlying deadline.

If you believe a medical provider’s negligence caused you harm, speak with our office about your case and the presuit steps that come next before any deadline passes.