Why Presuit Investigations, Expert Affidavits, and 90-Day Windows Drive Case Strategy

In Florida, a birth injury claim doesn’t start in a courtroom—it begins with a critical legal process known as the presuit phase. This phase is not only mandatory under Florida law, but it’s also a strategic opportunity to build, resolve, or even avoid litigation altogether.

For families navigating the trauma of a birth injury and for attorneys preparing these complex cases, understanding the legal requirements and tactical opportunities of the presuit phase is essential.

What Is the Presuit Phase in Florida Medical Malpractice Cases?

Florida law requires that medical malpractice claims, including those involving birth injuries, must go through a presuit process before a lawsuit can be filed. This is outlined in Florida Statute §766.106.

The presuit phase begins when the claimant (often the parents of an injured child) serves a Notice of Intent to Initiate Litigation on the healthcare provider. This triggers a 90-day response window in which the parties investigate the case and explore the potential for early settlement.

This presuit process applies to any medical negligence involving injury or death—including harm to newborns caused by errors during pregnancy, labor, or delivery.

When Is the Presuit Phase Required in Birth Injury Cases?

Presuit requirements apply to all medical negligence claims in Florida. Birth injury cases typically qualify when they involve medical errors such as:

• Improper monitoring of fetal distress
• Failure to order a timely C-section
• Misuse of delivery tools like forceps or vacuum extractors
• Oxygen deprivation leading to conditions like cerebral palsy
• Delayed diagnosis of maternal or fetal complications

If the injury is linked to the actions—or inaction—of medical professionals during pregnancy or birth, the claim must go through the presuit process before litigation.

The 90-Day Window: More Than a Waiting Period

How the 90-Day Period Works

Once a valid Notice of Intent is served, Florida law gives the defendant (typically a hospital, OB-GYN, or pediatric specialist) 90 days to respond. During this time:

• The claimant cannot file a lawsuit.
• The healthcare provider conducts an internal review.
• The insurer evaluates liability and risk exposure.
• Both sides may engage in negotiation.

This is not just a waiting period—it’s a critical time to strengthen the case, present compelling evidence, and possibly reach an early settlement.

Why This Window Is Strategic for Plaintiffs

The 90-day window allows plaintiffs to:

• Organize and review all medical records
• Finalize their expert opinions and affidavits
• Anticipate defense arguments
• Enter into productive settlement discussions

In many cases, a strong presuit package—backed by medical documentation and expert validation—can lead to resolution before litigation ever begins.

The Legal Importance of Expert Affidavits in Birth Injury Claims

What Is an Expert Affidavit?

An expert affidavit is a written opinion by a licensed medical professional confirming that the claim has legal and medical merit. This affidavit must accompany or closely follow the Notice of Intent.

According to Florida Statute §766.203, this affidavit must confirm that:

• The expert has reviewed the medical facts.
• There is a reasonable basis to believe that a breach of the standard of care occurred.

Without this affidavit, the court may dismiss the claim entirely—even if the underlying injury is valid.

Who Qualifies as an Expert in Florida?

Florida law requires that the expert:

• Be a licensed medical professional in the United States
• Have actively practiced or taught in a similar specialty within the past three years
• Have experience relevant to the care provided in the case

For birth injury cases, the expert is typically an OB-GYN, neonatologist, or pediatric neurologist—depending on the circumstances of the injury.

Mistakes That Can Invalidate an Affidavit

Many claims are derailed by procedural errors in the expert affidavit. Common mistakes include:

• Using an expert outside the appropriate specialty
• Submitting vague or conclusory opinions
• Relying on retired or inactive physicians
• Failing to attach supporting medical documentation

These mistakes can give the defense an easy path to dismissal, no matter how strong the injury claim is.

Building a Legally Strong Birth Injury Case During Presuit

Step 1: Thorough Medical Record Review

The first step in any successful presuit strategy is to collect and review the child’s and mother’s entire medical history, including:

• Prenatal care records
• Labor and delivery reports
• Fetal heart monitoring data
• Apgar scores
• NICU records and follow-up diagnoses

These records allow attorneys and experts to understand what happened—and to determine whether medical errors occurred.

Step 2: Collaborating with Qualified Experts

Experts should not be added as an afterthought. They must be involved early in the process to:

• Review records thoroughly
• Help reconstruct the medical timeline
• Draft a clear and compliant affidavit
• Identify exactly where and how the standard of care was breached

This proactive approach makes the expert’s opinion more credible and persuasive.

Step 3: Drafting the Notice of Intent

The Notice of Intent should be:

• Specific in its allegations
• Supported by the expert affidavit
• Delivered to the correct legal party (hospital, OB-GYN, etc.)
• Sent via the proper service method under Florida Rule of Civil Procedure 1.650

A professionally written, evidence-backed Notice can build pressure on the defense and set the tone for a favorable negotiation.

Strategies Used by Both Sides During the Presuit Period

For Plaintiffs: Applying Pressure and Building Leverage

Experienced plaintiff attorneys will use the presuit phase to:

1. Document damages thoroughly
2. Interview witnesses, including attending nurses or staff
3. Identify institutional failures (e.g., poor training, short staffing)
4. Demonstrate compliance with every legal requirement

This positions the plaintiff as serious, well-prepared, and ready to proceed to court if needed.

For Defendants and Insurers: Looking for Errors

Defense attorneys and insurance companies take a different approach. They look for technical errors that can lead to dismissal, such as:

1. A non-compliant expert affidavit
2. Incorrect service of the Notice
3. Failure to meet the statute of limitations
4. Filing against the wrong party

Their goal is often to eliminate or delay the claim before it reaches a jury.

Mistakes That Can Destroy a Birth Injury Case Before It Begins

The presuit phase is a legal minefield. Even small mistakes can prevent the case from moving forward. Common missteps include:

1. Misunderstanding when the 90-day period starts
2. Submitting an affidavit from an expert not actively practicing
3. Failing to send the Notice to the correct party
4. Omitting necessary medical documents
5. Assuming the presuit window pauses the statute of limitations (it doesn’t)

Avoiding these errors is essential for preserving the family’s right to pursue justice.

Frequently Asked Questions About Florida Birth Injury Presuit Rules

Is the presuit phase required for all Florida birth injury cases?
Yes. If the claim is based on medical negligence, the presuit process is mandatory before filing a lawsuit.

Can my case settle during the presuit window?
Yes. Many birth injury cases settle during the presuit period if the documentation and affidavit are strong.

What if the defendant doesn’t respond in 90 days?
If the defendant fails to respond, the claimant can proceed with filing the lawsuit once the 90-day period ends.

Can I use an out-of-state expert?
Only if the expert meets Florida’s specific qualifications. They must be licensed, actively practicing, and in a similar specialty.

Does the 90-day presuit period pause the statute of limitations?
No. The statute of limitations continues to run during the presuit phase. This is a common and critical oversight.

Final Thoughts: Start Your Birth Injury Case the Right Way

In Florida, the presuit phase is not optional—it is a legally binding process that lays the foundation for your entire case. For families affected by a birth injury, it is also a time to gather strength, secure expert validation, and prepare for the legal battle ahead.

Handled correctly, the presuit phase can lead to early resolution and compensation without a drawn-out trial. Handled poorly, it can result in dismissal—regardless of how legitimate the injury may be.

Preparation, expertise, and legal compliance are the pillars of success in this phase.

Contact Rafferty Domnick Cunningham & Yaffa Today

If your child has suffered a birth injury due to suspected medical negligence, do not attempt to navigate the presuit process alone. Strict deadlines and procedural requirements can derail your claim before it begins.

The attorneys at Rafferty Domnick Cunningham & Yaffa have extensive experience handling birth injury and medical malpractice cases across Florida. We understand the intricacies of the presuit process and know how to build strong, compliant cases that maximize your chance of success.

Contact us today for a free consultation. Let us help you seek justice—starting with the strategy that matters most.