Two sets of rules decide whether most Florida medical malpractice cases survive their earliest stages: the filing deadlines in Fla. Stat. § 95.11(5)(c), and the mandatory presuit process in Chapter 766 of the Florida Statutes. Miss a deadline and the claim dies. Skip or botch a presuit step and the claim can be dismissed — even if the malpractice itself is undeniable. And some cases follow additional or different tracks at the threshold: claims against state or local governmental providers (public hospitals among them) also require written presentment under Fla. Stat. § 768.28(6) before suit — to the agency and, for most defendants, the Department of Financial Services; for medical-malpractice and wrongful-death claims, 90 days of agency inaction is deemed a final denial, the limitations period is tolled while the claim is pending, and presentment must itself be timely — generally within 3 years of accrual, and for wrongful-death claims within 2 years to the Department of Financial Services (§ 768.28(6)); whether a particular provider is actually covered by § 768.28 is itself an entity- and relationship-specific question — and certain catastrophic birth-related neurological injuries belong to Florida’s NICA administrative program — §§ 766.301–766.316 generally provide the exclusive remedy for qualifying claims (subject to narrow statutory exceptions, including the bad-faith civil action preserved by § 766.303(2)), and § 95.11(5)(c) expressly excludes those actions.
Florida Medical Malpractice Deadlines: The Statute of Limitations and the Chapter 766 Presuit Process
Here is the short version: you generally have two years from when you discovered (or should have discovered) the malpractice, with a four-year outer limit, and before suit can be filed you must complete a formal investigation, obtain a verified written medical expert opinion (commonly called the presuit affidavit), and serve a notice of intent that starts a 90-day waiting period. This page walks through each rule as it stands in 2026 — including the exceptions for fraud and young children, and the traps that end cases early.
Silva & Silva has handled Florida medical malpractice claims from Coral Gables since 1992. Founded by brothers Carlos E. Silva and Jorge E. Silva, the firm’s published results include more than $131 million in medical-malpractice recoveries — among them a $70 million recovery, a $25 million arbitration award, and results of $14 million, $13 million, and $9.35 million. Past results do not guarantee a similar outcome. If a deadline may be approaching in your case, contact our medical malpractice attorneys now — the analysis below takes time to apply, and the clock does not wait.
How Long Do I Have to File a Medical Malpractice Claim in Florida?
The baseline rule under Fla. Stat. § 95.11(5)(c) is two years. But the two-year clock does not necessarily start on the day of the medical error — it starts when the malpractice was discovered, or reasonably should have been discovered with due diligence. That is Florida’s “discovery rule,” and how it applies to your facts often decides whether you still have a case.
How Does the Discovery Rule Affect the Statute of Limitations?
Florida courts answered this in the landmark case Tanner v. Hartog (1993), which established a “dual awareness” standard. The two-year clock starts only when the patient knows — or reasonably should know — both of two things:
- that an injury occurred, and
- that there is a reasonable possibility the injury was caused by medical negligence.
Knowing about a bad outcome does not necessarily start the clock. A patient who reasonably believed a poor surgical result was just a known complication may not have triggered it — there must also be reason to suspect the care itself fell short. But Tanner cuts both ways: some injuries are so telling that, standing alone, they communicate a reasonable possibility of medical negligence and start the limitations period immediately.
It was not always this way. Under the older rule from Nardone v. Reynolds (1976), the clock could start once the patient knew of either the negligent act or the injury — a harsh standard that charged patients with knowledge they did not realistically have. Tanner refined that rule rather than discarding it — clarifying what “knowledge of the injury” means for limitations purposes and softening Nardone‘s harshest applications — and Florida’s appellate courts continue to enforce the dual-awareness standard, examining both what the patient actually knew and what a reasonable person in the patient’s position should have discovered.
The discovery rule is fact-intensive: medical records, what doctors told the family, and when symptoms surfaced all matter. This is why two people with similar injuries can have very different deadlines.
The Four-Year Statute of Repose: The Outer Limit
Running alongside the discovery rule is a hard stop. Under Fla. Stat. § 95.11(5)(c), no medical malpractice action may be commenced more than four years after the incident itself — regardless of when the injury was discovered — subject only to the narrow exceptions below. Lawyers call this a statute of repose.
The repose period can produce harsh results. If a surgical sponge left inside a patient causes no symptoms for five years, the claim is generally barred before the patient ever had a realistic chance to discover it — unless one of the exceptions applies. Between the two deadlines, whichever runs out first controls.
Exception 1: Fraud or Concealment — Up to Seven Years
If the healthcare provider engaged in fraud, concealment, or intentional misrepresentation of fact that prevented discovery of the injury, the limitations period is extended to two years from when the injury is discovered or should have been discovered with due diligence — subject to a ceiling of seven years from the incident. (Like the four-year repose, that seven-year ceiling does not bar a claim brought on behalf of a child on or before the child’s eighth birthday.)
Florida courts have applied this exception to affirmative concealment — and, in some circumstances, to a provider’s knowing failure to disclose material facts about the patient’s condition or care (Nardone v. Reynolds; Nehme v. SmithKline Beecham). Whether particular conduct qualifies is a fact-specific question. And seven years is a true ceiling — even permanently incapacitated victims face that final cutoff.
Exception 2: Young Children — “Tony’s Law”
The four-year repose period does not bar a claim brought on behalf of a child on or before the child’s eighth birthday. Fla. Stat. § 95.11(5)(c) says so explicitly — a protection known as “Tony’s Law.”
This matters enormously in pediatric and birth injury cases, where the full extent of harm can take years to become clear. Note that the ordinary two-year discovery rule still applies to what the parents knew or should have known — Tony’s Law lifts the four-year outer limit for young children; it does not suspend every deadline.
A 90-Day Extension on Request: Fla. Stat. § 766.104(2)
Florida law also offers a lesser-known safety valve. Under Fla. Stat. § 766.104(2), a claimant can obtain an automatic 90-day extension of the statute of limitations by filing a petition with the clerk of the circuit court and paying the filing fee before the limitations period expires. No court order is required — the extension is automatic upon filing.
Two cautions: the petition must be filed while the period is still open, and it cannot revive a claim that has already expired. Used properly, it buys an investigating attorney the time to complete the presuit work the law demands.
What Is the Chapter 766 Presuit Requirement?
Even with time left on the clock, you cannot simply file a medical malpractice lawsuit in Florida. Chapter 766 requires a claimant to complete a formal presuit screening process first, designed to filter out unsupported claims and push valid ones toward early resolution. Courts enforce it strictly — non-compliance can lead to dismissal.
Here is the sequence:
Step 1: The Presuit Investigation and Expert Opinion
Before anything is served, the claimant’s attorney must conduct a reasonable investigation establishing good-faith grounds to believe each named provider was negligent and caused the injury (Fla. Stat. § 766.104). Under Fla. Stat. § 766.203, that investigation must be corroborated by a verified written medical expert opinion: a qualified expert reviews the records and attests that the care fell below the accepted standard.
This front-loads real work — gathering complete medical records and retaining the right specialist — before the defendant even knows a claim is coming. And “right specialist” is a statutory term: under Fla. Stat. § 766.102(5), when the defendant is a specialist, the corroborating expert must specialize in the same specialty — with the recent-experience requirement satisfied by active practice, teaching, or qualifying clinical research during the preceding three years. It is also where cases are won or lost: a defective or mismatched expert opinion can doom the entire claim.
Step 2: The Notice of Intent and the HIPAA Authorization Trap
Next, the claimant serves each prospective defendant with a Notice of Intent to Initiate Litigation under Fla. Stat. § 766.106, sent by verifiable means such as certified mail. The notice package must include:
- the corroborating expert opinion,
- a list of all known providers who treated or evaluated the patient for the injuries after the alleged malpractice (if available),
- a list of all known providers who treated or evaluated the patient in the two years before it (if available),
- the names and addresses of all other parties, with the notice sent to each party (Fla. R. Civ. P. 1.650),
- copies of the medical records the expert relied on (if available), and
- a properly executed, HIPAA-compliant medical authorization under Fla. Stat. § 766.1065.
That last item is a notorious trap. The statutory authorization lets the defense interview the patient’s other treating providers ex parte — without the patient or the patient’s attorney present — under § 766.106’s notice-and-scheduling procedure, as part of its evaluation. Under § 766.1065, a notice of intent served without the required authorization is void, and if the claimant later revokes the authorization, the notice becomes retroactively void. Material defects in the authorization can also support dismissal under Fla. Stat. § 766.206. For a claimant near the end of the limitations period, a voided notice can be fatal to the case.
Courts do distinguish among defects: some presuit problems can be cured while the deadline is still open, and dismissal is not automatic for every technical misstep — but no one should plan on grace.
Step 3: The 90-Day Window, Tolling, and Informal Discovery
Serving a compliant notice does two things at once — but the two run on slightly different clocks. First, it tolls (pauses) the filing deadlines: the Florida Supreme Court held in Boyle v. Samotin (Fla. 2022) that tolling begins upon timely mailing — not when the defendant eventually receives the notice — and the current text of § 766.106(4) carries that principle to the other authorized methods (for service by process server, tolling begins on the first attempt at service). Second, it opens the 90-day window in which the provider and its insurer must investigate the claim — a period that begins upon delivery to the prospective defendant. Because transit time counts toward tolling, the total pause can exceed 90 calendar days — a distinction that can matter when the deadline is days away.
During the window, the parties conduct informal discovery under § 766.106: unsworn statements, document production, and similar exchanges. The statute’s confidentiality protection covers what presuit itself generates — unsworn statements, reports, and other work product created for presuit screening are not discoverable or admissible in the later civil action. Independently existing evidence, such as the medical records themselves, does not become inadmissible merely because it was produced during presuit. No lawsuit may be filed during the 90 days against a defendant that has not yet responded — though once a prospective defendant serves its written rejection, suit may proceed against that defendant even before the window closes (Fla. R. Civ. P. 1.650).
Step 4: The Insurer’s Answer — and the Penalties for Cutting Corners
By the end of the 90 days, the prospective defendant — or its insurer or self-insurer — must do one of three things: reject the claim (backed by its own verified expert opinion), make a settlement offer, or offer to arbitrate. Silence has a consequence too: failure to respond within the 90 days is deemed a final rejection.
The statutes have teeth on both sides. Under Fla. Stat. § 766.206, if a court finds the claimant’s notice was filed without the required investigation or with a non-compliant expert opinion, the case can be dismissed, costs can be shifted, and the court must report such a finding to The Florida Bar — with three or more reports against the same attorney within five years triggering an additional referral to a circuit grievance committee. Defendants who reject claims without a good-faith basis face sanctions of their own. The parties may also agree to voluntary binding arbitration under Chapter 766 — a faster path by design (the Legislature’s stated intent, § 766.201(2)(b)) that caps non-economic damages (generally at $250,000 per incident under Fla. Stat. § 766.207) while removing the risk of an outright defense verdict. (Voluntary binding arbitration is not available in actions against the state, its agencies or subdivisions, or their employees covered by § 768.28 — § 766.207(1).)
The Filing Math After a Denial
When the presuit process ends in a denial, the deadline arithmetic becomes critical. The claimant has 60 days or the remainder of the original limitations period — whichever is longer — to file the lawsuit. But the clock does not necessarily wait for day 90: under Fla. Stat. § 766.106(4) and Fla. R. Civ. P. 1.650(d)(3), it starts at the earliest of the claimant’s receipt of the written rejection, the end of the 90-day period, or the termination of settlement negotiations. An insurer that rejects the claim in week three starts the 60-day clock in week three. One nuance that works in a claimant’s favor: if the automatic 90-day extension under § 766.104(2) was timely purchased, the Florida Supreme Court has held that it is added after this formula is applied (Hillsborough County Hospital Authority v. Coffaro, Fla. 2002) — one more reason the exact math is a lawyer’s job.
In practice, this means a family that started presuit with only weeks left on the two-year clock is not automatically out of time when the denial arrives — but the margin is thin, and the trigger dates (mailing, delivery, rejection, any stipulated extension) must each be identified and the deadline calculated precisely. This is arithmetic no family should be doing alone, because a one-day error is unforgivable in court.
Why Families Call Silva & Silva Early
Every rule on this page rewards early action: records take time to gather, the right expert takes time to retain, and every presuit document must be right the first time. Since 1992, Silva & Silva has built medical malpractice cases the demanding way Florida requires — and the firm’s published medical-malpractice results of more than $131 million, including a $70 million recovery and a $25 million arbitration award, reflect that preparation. Past results do not guarantee a similar outcome.
Frequently Asked Questions
How long do I have to file a medical malpractice claim in Florida?
Generally two years from when you discovered — or reasonably should have discovered — both the injury and a reasonable possibility that negligence caused it, with a four-year outer limit from the incident under Fla. Stat. § 95.11(5)(c). Exceptions exist for fraud or concealment (two years from discovery, capped at seven years from the incident) and for children (claims brought on or before the eighth birthday are not barred by the four-year limit), and a 90-day extension can be secured under Fla. Stat. § 766.104(2) before the period expires.
When exactly does the two-year clock start?
Under Tanner v. Hartog (1993), it starts at “dual awareness”: knowledge of the injury and of a reasonable possibility it was caused by medical negligence. A bad outcome alone, reasonably understood as a complication, does not automatically start the clock.
What if the doctor or hospital hid the mistake?
Fraud, concealment, or intentional misrepresentation that prevents discovery extends the deadline to two years from actual or constructive discovery, capped at seven years from the incident. Courts have applied this to affirmative concealment and, in some circumstances, to a provider’s knowing failure to disclose material facts — the analysis is fact-specific.
Do children get extra time?
Yes. The four-year repose period does not bar a claim brought on behalf of a child on or before the child’s eighth birthday (“Tony’s Law”). Separate rules — including Florida’s NICA program for certain catastrophic birth injuries, which requires a petition before the child’s fifth birthday — can also apply to birth injury cases.
Can I just file my lawsuit right away?
No. Chapter 766 requires the full presuit sequence first: investigation, a corroborating verified expert opinion, and a notice of intent with a compliant HIPAA authorization, followed by the 90-day review window. Filing without completing presuit exposes the case to dismissal under Fla. Stat. § 766.206.
Does the notice of intent pause my deadline?
Yes. Timely mailing tolls the filing deadlines (Boyle v. Samotin, Fla. 2022), and current § 766.106(4) applies the same principle to the other authorized service methods; because the separate 90-day investigation window runs from delivery, the total pause can exceed 90 days. Once the presuit period ends — including early, upon receipt of a written rejection — you have 60 days or the remainder of your original period, whichever is longer, to file suit.
Don’t Guess at Your Deadline — Free Consultation
The difference between a live claim and a lost one can come down to a single date buried in a medical record. Let us calculate your deadlines, order the records, and start the presuit process properly. The consultation is free, and we handle these cases on a contingency basis, advancing the case costs — which are repaid out of any recovery under the representation agreement.
Call Silva & Silva at (305) 445-0011 or contact us online for a free consultation. We represent patients and families throughout South Florida, including Miami, Coral Gables, and Fort Lauderdale. Hablamos español.
This page is for general informational purposes only. It is not legal advice, and reading it does not create an attorney-client relationship. Laws change, and every case is different. For advice about your specific situation, consult a licensed Florida attorney.
