How Florida’s Presuit Requirements Shape Birth Injury Cases—and Why Compliance Matters

Before filing a birth injury lawsuit in Florida, there are several mandatory legal steps that must be taken. These presuit requirements, governed by Chapter 766 of the Florida Statutes, are not simply procedural formalities—they are essential components of a compliant medical malpractice claim.

Understanding and adhering to these rules is especially critical for plaintiff-side medical malpractice attorneys, legal researchers, and parents or guardians of injured infants. Failure to comply with presuit steps can lead to devastating consequences, including dismissal of a case, significant delays, or even the complete loss of the right to sue.

This guide explains everything you need to know about Florida’s birth injury presuit process, helping ensure your claim is properly prepared and can proceed without unnecessary legal hurdles.

Understanding the Legal Landscape for Florida Birth Injury Claims

What Constitutes a Birth Injury?

A birth injury refers to physical harm inflicted on a baby during the process of labor, delivery, or shortly after birth. These injuries may result from medical mistakes, delays in decision-making, or failure to respond to fetal distress. Common examples include cerebral palsy, shoulder dystocia, oxygen deprivation, and nerve damage.

When a healthcare provider’s action—or inaction—falls below the accepted medical standard of care, and this causes harm to a newborn, it may be considered medical malpractice. In Florida, such claims must comply with strict presuit investigation and notice procedures set forth in Chapter 766 of the Florida Statutes.

How Florida Statutes Define the Legal Framework

Florida Statutes Chapter 766 outlines the laws governing medical negligence claims, including those involving birth injuries. The chapter contains very specific requirements regarding:

1. Who may bring a claim
2. How a potential claim must be investigated
3. The use and qualifications of medical experts
4. Time limits (statute of limitations and repose)
5. Formal notice procedures before filing a lawsuit

Compliance with these provisions is mandatory—not optional. The courts have little flexibility to excuse noncompliance, even for minor technical errors.

Presuit Notice: What It Is and Why It Matters

Definition and Purpose of Presuit Notice

Under Section 766.106(2), Florida Statutes, a presuit notice is a formal written document that informs a potential defendant (such as a doctor, nurse, or hospital) of the plaintiff’s intent to initiate litigation for medical malpractice. This requirement is designed to allow for early resolution of disputes without full-blown litigation, and it serves as a critical gatekeeping mechanism in Florida’s legal system.

The notice must include several elements:

1. A statement of the plaintiff’s intent to sue
2. A brief description of the claim
3. A list of healthcare providers seen by the plaintiff
4. A corroborating expert affidavit
5. Proper authorizations for the release of medical records

Who Must Receive a Presuit Notice?

Each potential defendant named in the eventual lawsuit must receive their own individual presuit notice. This includes not only physicians, but also hospitals, nurses, and any other licensed healthcare professionals or facilities alleged to have contributed to the injury.

Delivery must be by certified mail, return receipt requested, or by other delivery methods that comply with the statute. Service is considered complete upon receipt, not mailing—so tracking is crucial.

When Must the Notice Be Sent?

The presuit notice must be sent before the expiration of the statute of limitations, and before a complaint is filed in court. Once the notice is delivered, a mandatory 90-day investigatory period begins. During this time, the statute of limitations is temporarily tolled or paused.

Failing to send this notice—or sending it late—can be fatal to the claim. In many cases, courts have dismissed lawsuits that were otherwise meritorious simply because the presuit notice was not properly executed.

The Presuit Investigation Process: Timeline, Requirements, and Compliance

What the Law Requires Before Filing

Florida law requires the plaintiff and their legal team to conduct a thorough investigation before initiating a lawsuit. This investigation must confirm reasonable grounds to believe that the defendant committed medical negligence, and that this negligence caused the patient’s injuries.

This investigation culminates in a sworn affidavit from a qualified medical expert (also known as an “affidavit of merit”) who must independently review the case and attest to the validity of the claim.

Once the notice is sent, the defense enters a 90-day evaluation period where they can:

• Request additional records
• Conduct interviews with medical professionals
• Perform their own review of the case with a defense expert

At the end of this period, the defendant must respond by either:

• Denying the claim
• Offering a settlement
• Requesting binding arbitration

Importance of Medical Records and Timely Requests

Under Section 766.204, providers must produce requested medical records within 10 business days of receiving a written request. If they do not, the statute of limitations may be tolled, giving plaintiffs additional time.

However, this tolling isn’t automatic—it only applies if the records are clearly requested, and the plaintiff can prove the delay.

The Expert Affidavit: Key to Moving Forward

Purpose and Legal Basis

The expert affidavit is the centerpiece of the presuit process. It must be included with the presuit notice and serves as a certified endorsement from a qualified medical professional stating that the standard of care was breached.

Without this affidavit, the court is required to dismiss the lawsuit. This is why securing a qualified, credible expert early in the process is so critical.

Who Qualifies as a Valid Medical Expert?

Florida law imposes strict requirements for who may offer expert testimony in a medical malpractice case. The expert must:

1. Be licensed in Florida or another state
2. Practice or teach in the same or similar specialty as the defendant
3. Have actively practiced or taught within the last three years
4. Not devote more than 50% of their time to consulting or litigation

Using an unqualified expert, or submitting an unsigned or undated affidavit, can lead to automatic dismissal, regardless of the merits of the case.

Common Pitfalls and Consequences of Noncompliance

What Happens If Requirements Are Not Met?

Failing to strictly adhere to Chapter 766’s presuit rules often results in severe consequences. These include:

1. Dismissal of the case with prejudice (meaning it cannot be refiled)
2. Expiration of the statute of limitations, permanently barring recovery
3. Wasted time and resources for both attorney and client
4. Loss of trust between attorney and client due to technical errors

The most common missteps include:

1. Sending notice without the required affidavit
2. Using an unqualified medical expert
3. Mailing notice to the wrong address or party
4. Failing to track delivery receipt
5. Filing a complaint before the presuit period ends

Attorneys must be meticulous in their preparation, execution, and documentation of every step in the presuit process.

Best Practices for Florida Attorneys Handling Birth Injury Claims

How to Stay Compliant and Avoid Costly Mistakes

To ensure proper compliance with Florida’s birth injury presuit laws, legal professionals should implement a systematic approach that includes:

1. Maintaining a detailed checklist of presuit tasks
2. Carefully selecting and vetting medical experts
3. Keeping a calendar of statutory deadlines
4. Using certified mail and saving delivery confirmation
5. Diligently documenting all client and provider interactions

Given how unforgiving Florida courts are regarding technical compliance, legal teams should invest in internal training and process automation to avoid avoidable mistakes.

Frequently Asked Questions (FAQs)

What is Chapter 766, and how does it affect my birth injury claim?

Chapter 766 of the Florida Statutes lays out the rules governing medical malpractice cases, including those involving birth injuries. It requires that plaintiffs undergo a presuit investigation, send formal notice to each potential defendant, and submit a medical expert affidavit before filing a lawsuit. These steps are required by law, and failing to comply with them can result in a case being thrown out—even if the underlying medical negligence is clear.

Is an expert affidavit always required in Florida birth injury cases?

Yes. Under Chapter 766, a birth injury case in Florida cannot proceed without a sworn affidavit from a medical expert who practices in the same or a substantially similar field as the defendant. This expert must affirm that the care provided fell below the accepted standard and that this failure likely caused the injury. Without a valid affidavit, the court will not allow the case to move forward.

What happens during the 90-day presuit period?

Once a presuit notice is served, Florida law mandates a 90-day window for the healthcare provider to investigate the claim. During this period, both sides may exchange documents, obtain expert opinions, and potentially settle the case. The defendant must respond before the end of the 90 days with either a denial, settlement offer, or request for arbitration. Plaintiffs cannot file their lawsuit until this period ends or the defendant issues a formal response.

Can I file a lawsuit without sending a presuit notice?

No. Filing a lawsuit before serving a valid presuit notice violates Chapter 766 and typically results in immediate dismissal of the case. Even if the case has merit, the court has no discretion to allow it to proceed without proper notice. This is why it’s crucial for both attorneys and clients to understand the procedural steps required before initiating legal action.

How long do I have to file a birth injury lawsuit in Florida?

Generally, Florida allows two years from the date of the incident—or from the date the injury was discovered or should have been discovered—to file a medical malpractice lawsuit. However, for minors, especially in birth injury cases, the rules are more complex. In some cases, claims must be filed before the child’s eighth birthday, regardless of when the injury was discovered. The presuit process tolls the statute, but deadlines are still tight. Consulting an attorney early is essential to avoid missing important legal deadlines.

Conclusion: Don’t Let Technical Errors Jeopardize Your Birth Injury Case

Florida’s birth injury presuit requirements are not just bureaucratic hurdles — they are critical legal mandates that determine whether a case will proceed or be dismissed. Compliance with Chapter 766 is essential for protecting the rights of injured children and their families.

Whether you’re an attorney preparing a case or a parent seeking answers, it’s important to act quickly, consult with qualified medical experts, and partner with an attorney who understands the intricacies of Florida’s presuit procedures.

Contact Rafferty Domnick Cunningham & Yaffa Today

If your child suffered a preventable birth injury and you’re considering legal action, contact us today for a free consultation. Our lawyer can help guide you through the presuit process, gather the required documentation, and ensure full compliance with the law—giving your case the strongest possible foundation.