How to Sue a Hospital in Florida for Negligence: Chapter 766 Pre-Suit Steps, Expert Affidavits, and Who Is Liable

Hospitals are where we place our deepest trust, bringing ourselves and our loved ones through their doors at our most vulnerable moments with the expectation that every nurse, technician, and physician will meet the standard of care. When that trust is broken by a preventable error, the harm can be life-altering — and in Florida, the path to accountability runs through one of the most procedural medical negligence systems in the country.

We understand that if you or a loved one were harmed in a Florida hospital, the last thing you need is a maze of statutes standing between you and answers. That said, Chapter 766 of the Florida Statutes sets out a specific order of operations, and missing a single step can end a valid claim before it ever reaches a courtroom.

This guide walks through that sequence step by step: securing the medical records, obtaining the corroborating expert opinion, serving the notice of intent to initiate litigation, completing the 90-day pre-suit investigation, and filing suit. Along the way, it explains when a Florida hospital answers for the people who work inside it, and what changes when the hospital is a public institution protected by sovereign immunity.

Every Florida hospital negligence claim is built on the medical record, which is why the first practical step is obtaining a complete copy of it. Keep in mind that a complete record reaches well beyond the discharge summary, including nursing notes, medication administration records, operative and anesthesia records, imaging, lab results, and the electronic audit trail that shows who entered what and when.

Florida law gives patients a right to their records, and § 766.204 requires that copies of records relevant to a medical negligence claim be provided at a reasonable charge during the pre-suit process. What's more, that same section attaches consequences to a party's failure to produce records in good faith, so an attorney will typically request them in writing and document every response — confirm with counsel how those consequences apply to your case.

The records an attorney will typically request from a hospital include but are not limited to:

• The complete chart. Admission records, physician orders, progress notes, nursing flowsheets, and discharge documentation for the entire stay.
• Intraoperative and anesthesia records. The anesthesia record, count sheets, and operative report, which are especially important in cases involving retained surgical items or anesthesia awareness during surgery.
• Medication administration records. Time-stamped entries showing what was given, by whom, and in what dose, which are central to medication dosing error claims.
• The electronic audit trail. Metadata showing when entries were made, altered, or viewed, which can reveal late charting or gaps in monitoring.
• Imaging and pathology. The actual studies and slides along with the reports, so an independent reviewer can reach their own conclusions.

All of these documents form the evidentiary foundation of the case. Without them, no qualified expert can responsibly say whether the care you received fell below the standard of care.

Florida does not allow a medical negligence lawsuit to proceed on a patient's account alone. Under § 766.203, the claimant must conduct a reasonable investigation and obtain a verified written medical expert opinion corroborating that there are reasonable grounds to believe negligence occurred.

This document is often called the expert affidavit, and it must be served along with the notice of intent. Accordingly, the expert review usually happens in the first weeks of an attorney's involvement, as soon as the records are in hand.

The expert must also be properly qualified. Section 766.102 generally requires a licensed health care provider in the same or a similar specialty as the prospective defendant who has devoted professional time to active clinical practice, teaching, or research in that specialty during the three years before the incident.

In a hospital case, that often means more than one expert. For instance, a claim involving a nurse's failure to escalate a deteriorating patient may require a nursing expert, while a claim involving CRNA supervision may need an anesthesiologist who can speak to the supervising physician's duties.

Remember that the defense carries a parallel obligation. A prospective defendant who rejects the claim must provide its own corroboration that reasonable grounds are lacking, and under § 766.206 a court may dismiss claims or strike defenses that were not investigated in good faith.

Once the expert opinion is secured, the claimant serves a notice of intent to initiate litigation for medical negligence on each prospective defendant under § 766.106. The notice is sent by certified mail, return receipt requested, and it must be served before the statute of limitations expires.

The notice also carries required attachments. These generally include the verified expert opinion, copies of the medical records the expert relied upon, a list of known health care providers who treated the claimant before and after the incident, and an executed authorization for the release of protected health information in the form set out in § 766.1065.

Once the notice is received, the 90-day pre-suit investigation begins. Here's how that period typically unfolds:

• Tolling. The statute of limitations is tolled during the 90-day period, so the clock pauses while both sides investigate.
• Defense review. The hospital, or its insurer or self-insurance program, must conduct its own review to evaluate liability, often through its risk-management process.
• Informal discovery. Under § 766.106(6), the parties may exchange documents, take unsworn statements, serve written questions, and in some cases request a physical examination of the claimant.
• The response. Before the 90 days end, the prospective defendant must reject the claim, make a settlement offer, or offer to admit liability and arbitrate damages.

If the hospital does not respond within 90 days, that silence is treated as a final rejection of the claim. After a rejection — express or deemed — the claimant has 60 days or the remainder of the limitations period, whichever is greater, to file suit.

The arbitration choice carries real weight. Under §§ 766.207 and 766.209, a claimant who refuses a defendant's offer to arbitrate may face a limit on noneconomic damages at trial, while a defendant who refuses a claimant's offer may be exposed to prejudgment interest and attorney's fees — confirm with counsel how these provisions apply to your situation.

One of the most important questions in any hospital case is whether the hospital itself answers for the error, or only the individual who made it. Florida law recognizes several routes to hospital liability, and a single case may rely on more than one of them.

Vicarious Liability For Employees

A hospital is generally responsible for the negligence of its employees acting within the scope of their employment. This typically includes staff nurses, employed technicians, pharmacists, and any physicians or nurse anesthetists who are on the hospital's payroll.

However, many physicians who practice in Florida hospitals — emergency physicians, anesthesiologists, radiologists, and surgeons among them — are independent contractors. In those cases the hospital may argue it is not responsible for their conduct, which is where the next theories come into play.

Apparent Agency

Florida courts recognize that a hospital can be liable for a non-employee physician under the doctrine of apparent agency. Generally, this requires showing that the hospital made representations suggesting the physician was its agent, that the patient reasonably relied on those representations, and that the patient changed position because of that reliance.

For example, a patient who arrives at an emergency department, is assigned whichever physician is on duty, and is never told that physician is an independent contractor may have a strong apparent agency argument. Consent forms and signage matter here, which is why an attorney will review exactly what you signed and saw, much like the document review in an informed consent claim.

In some circumstances, Florida courts have also found that a hospital owes a nondelegable duty arising from a statute, a regulation, or its own undertaking to the patient. Where that duty exists, the hospital cannot shed responsibility simply by contracting the service out.

Corporate Negligence Under § 766.110

Florida also imposes a direct duty on the hospital itself. Under § 766.110, every licensed health care facility has an affirmative duty to assure comprehensive risk management and the competence of its medical staff and personnel through careful selection, review, and periodic reevaluation of the physicians it grants privileges to.

As a result, a hospital that grants privileges to a surgeon despite a known pattern of complications, fails to act on risk-management reports, or allows unsafe staffing to persist may be liable for its own negligence. Peer review and credentialing files carry confidentiality protections in Florida, although Article X, Section 25 of the Florida Constitution gives patients a right to access records of adverse medical incidents.

All of these theories can work together. A single surgical error case might involve an employed nurse under vicarious liability, an emergency physician under apparent agency, and the hospital itself under § 766.110 — which is why each prospective defendant must receive its own notice of intent.

Not every Florida hospital is a private corporation. Many are operated by public health trusts, special taxing districts, counties, or state universities, and claims against those entities are governed by Florida's limited waiver of sovereign immunity in § 768.28.

Keep in mind that sovereign immunity reshapes the claim in several ways. The differences include but are not limited to:

• Damages caps. Recovery against a public entity is generally capped at $200,000 per person and $300,000 per incident, and any amount beyond that requires a claims bill passed by the Florida Legislature.
• An additional written claim. Before filing suit, the claimant must present the claim in writing to the agency and, in most cases, to the Florida Department of Financial Services.
• A separate investigation window. The agency receives its own period to evaluate the claim before suit, and a shorter window applies to medical malpractice claims than to other tort claims.
• No extra filing time. Section 768.28 directs that medical malpractice actions against a public entity be commenced within the limitations period in § 95.11(4), so the sovereign-immunity process does not extend the underlying deadline.
• Individual immunity. Employees of a public hospital are generally not personally liable unless they acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights or safety.

Because a public hospital claim must satisfy both Chapter 766 and § 768.28, the notices, timelines, and named defendants need to be coordinated from the first week. The caps and notice rules have been the subject of legislative debate, so confirm the current figures with counsel before relying on them.

Under § 95.11(4), a Florida medical malpractice action generally must be commenced within two years from the date of the incident, or from the date the incident was discovered or should have been discovered with due diligence. In addition, a four-year statute of repose generally bars claims brought more than four years after the incident, extended to seven years where fraud, concealment, or intentional misrepresentation prevented discovery.

Special rules apply to minors, and the repose period does not bar an action on behalf of a child before the child's eighth birthday. For a deeper look at how these clocks interact, see our guide to the Florida malpractice filing deadline.

If the timeline is tight, § 766.104(2) allows a claimant to obtain an automatic 90-day extension of the statute of limitations by petitioning the clerk of the court where the suit will be filed. This extension is separate from the 90-day tolling during pre-suit, and it exists so that a reasonable investigation is not cut short.

Here's a list of the steps in the order they typically occur:

1. Request the complete records from the hospital and every treating provider.
2. Secure a qualified expert review and a verified written opinion under § 766.203.
3. Identify every prospective defendant, including whether the hospital is a public entity subject to § 768.28.
4. Serve the notice of intent under § 766.106 with its required attachments.
5. Complete the 90-day pre-suit investigation and evaluate any response or offer.
6. File the complaint in circuit court within the remaining limitations period.

Once pre-suit ends without a resolution, the claimant files a complaint in circuit court — in Miami-Dade County for many of our clients. Under § 766.104(1), the complaint must include a certificate of counsel stating that a reasonable investigation gave rise to a good-faith belief that grounds exist for an action against each named defendant.

From there, the case moves into formal discovery, depositions of hospital staff and experts, and often mediation before trial. Overall, the work done in the first months — the records, the expert opinion, the notice — tends to shape everything that follows.

We know that a preventable hospital error can be a catastrophic and traumatic event, and that the months afterward are often consumed by recovery, medical bills, and unanswered questions. While nothing can undo what happened, you may be entitled to compensation for medical expenses, lost wages, and pain and suffering.

Our team handles the Chapter 766 pre-suit process from the first records request through filing, working with qualified medical experts to evaluate whether the standard of care was breached. Explore our surgical error resources or speak with a Miami surgical error lawyer to learn how these cases are built.

Were you harmed during a hospital stay, and are you unsure whether the error rises to the level of negligence? Free consultation. No fee unless we recover.

Florida's two-year clock generally starts when you discovered the injury, or reasonably should have — do not wait to get answers. Your path to justice starts now.

This article is for informational purposes and does not constitute legal advice. Consult a qualified attorney in your jurisdiction about your specific situation.