medical negligence standard in Florida

2026Chapter 766, Florida Statutes, establishes “a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Kukral v. Mekras, 679 So. 2d 278, 280 (Fla. 1996).

2026Chapter 766, Florida Statutes, establishes “a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Kukral v. Mekras, 679 So. 2d 278, 280 (Fla. 1996).

2026A claim alleging derivative or vicarious liability based on the improper performance of a medical examination by a physician assistant is still a claim “arising out of the rendering of . . . medical care or services.” § 766.106(1)(a); see also Weinstock v. Groth, 629 So. 2d 835, 838 (Fla. 1993) (“[T]he proper test for determining whether a defendant is entitled to notice under section 766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1).”).

2026A claim alleging derivative or vicarious liability based on the improper performance of a medical examination by a physician assistant is still a claim “arising out of the rendering of . . . medical care or services.” § 766.106(1)(a); see also Weinstock v. Groth, 629 So. 2d 835, 838 (Fla. 1993) (“[T]he proper test for determining whether a defendant is entitled to notice under section 766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1).”).

2025Moreover, “in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1).” Integrated Health Care Servs., Inc. v. Lang–Redway, 840 So. 2d 974, 980 (Fla. 2002). 242 So. 3d at 309 .

2018Moreover, "in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1)." Integrated Health Care Servs., Inc. v. Lang-Redway , 840 So.2d 974 , 980 (Fla. 2002).

2018The alleged “breach of the prevailing professional standard of care” must be testified to by a qualified medical expert. § 766.102(5), Fla. Stat. (2013); see Townes, 242 So. 3d at 309 . 5 2008) (concluding that allegations a nurse and hospital failed to render appropriate medical care and treatment implicated medical negligence standard of care so that the claim was a medical malpractice claim); Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 469-70 (Fla. 3d DCA 2006); Puentes v. Tenet Hialeah Healthsystem, 843 So. 2d 356, 357-58 (Fla. 3d DCA 2003) (concluding that plaintiff’s claim t

2016The critical question is whether the plaintiff must rely on the medical negligence standard of care as defined by the statute to prevail. 4 Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469-70 (Fla. 3d DCA 2006) (footnote omitted) (citing Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla. 2002)); see also Browne, 44 So.3d at 238-39 (determining an action to be for medical malpractice because the claim could be proven only through evidence that the hospital agents fell below the prevailing standard of professional care).

2026LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011) (“The test for determining whether a defendant is 2 entitled to the benefit of the presuit screening requirements of section 766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section 766.102(1).” (internal citations omitted)); Univ. of Miami v. Bloomer, 337 So. 3d 838 , 840 (Fla. 3d DCA 2022) (observing that “a court must look beyond [the] label proffered and ‘must apply the law to the well-pleaded allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’

2018See Corbo , 949 So.2d at 369-70 (holding that plaintiff's claim was subject to presuit notice requirements of chapter 766 because she alleged that her injuries were the "direct result of her receiving physical therapy treatment from the" defendants and "[t]he fact that injury was caused by the use of the equipment during the rendering of medical treatment" placed the claim "into the realm of a medical negligence claim"); cf. Broadway v. Bay Hosp., Inc. , 638 So.2d 176 , 177 (Fla. 1st DCA 1994) (holding that where plaintiff alleged that she suffered injuries when her hospital bed collapsed, pla

2025Moreover, “in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1).” Integrated Health Care Servs., Inc. v. Lang–Redway, 840 So. 2d 974, 980 (Fla. 2002). 242 So. 3d at 309 .

2019To 8 determine if a claim asserts medical malpractice, a court will “look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1).” National Deaf Acad., LLC v. Townes, 242 So. 3d 303, 309 (Fla. 2018).

2017Section 395.0197(5) defines “adverse incident” as “an event over which health care personnel could exercise control and which is associated in whole or in part with medical intervention.” (Emphasis added.) Based on this language, any claim pleaded under section 395.0197 is necessarily a medical negligence claim because that section only requires hospitals and healthcare facilities to investigate “adverse incidents,” which by definition are “associated in whole or in part with medical intervention,” § 395.0197(5), and therefore necessarily “aris[e] out of ... medical, dental, or surgical diagno

1999In Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993), the supreme court held that the proper test for determining whether a health care provider "is entitled to notice under section 766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1)." Similarly, we hold that the presuit requirements of Chapter 766 are also mandatory where a claimant's cause of action is based on a health care facility's failure to exercise due care in fulfilling the duties imposed by section 766.110; the claim that a facility has i

2026Ctr., Inc., 662 So. 2d 367, 371 (Fla. 5th DCA 1995) (court considered whether chapter 766 applied to claims against a hospital for negligence arising out of its employee, a radiologic technician, applying excessive pressure during a mammogram, done on improperly calibrated equipment, causing the plaintiff’s breast implant to rupture.

2007See Goldman, 662 So.2d at 368 .

2025The Fifth District recognized that while physicians of different specialties may in fact treat the same body parts and perform similar procedures, in the end the 8 "doctors have different training and practice in different specialties." Id. at 555 (quoting Clare v. Lynch, 220 So. 3d 1258, 1260-61 (Fla. 2d DCA 2017) (holding that the trial court departed from the essential requirements of the law by allowing a presuit affidavit from a podiatrist to support the medical negligence claim against an orthopedic surgeon), disapproved on other grounds by Carmody, 372 So. 3d 246 ); see also Myers v. Pa

2025The Fifth District recognized that while physicians of different specialties may in fact treat the same body parts and perform similar procedures, in the end the 8 "doctors have different training and practice in different specialties." Id. at 555 (quoting Clare v. Lynch, 220 So. 3d 1258, 1260-61 (Fla. 2d DCA 2017) (holding that the trial court departed from the essential requirements of the law by allowing a presuit affidavit from a podiatrist to support the medical negligence claim against an orthopedic surgeon), disapproved on other grounds by Carmody, 372 So. 3d 246 ); see also Myers v. Pa

2007Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995).

2000Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995)("The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106 ... is whether the defendant is... liable under the medical negligence standard of care set forth in section 766.102(1)."); Feifer v. Galen of Florida, Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996)(presuit requirements of chapter 766 do not apply to "slip and fall" negligence action arising on premises of medical care provider).

2004The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section 766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section 766.102(1). [1] See Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251, 1252 (Fla. 1st DCA 2000); Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996).

2000Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995)("The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106 ... is whether the defendant is... liable under the medical negligence standard of care set forth in section 766.102(1)."); Feifer v. Galen of Florida, Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996)(presuit requirements of chapter 766 do not apply to "slip and fall" negligence action arising on premises of medical care provider).

2019Cf. Indian River Mem’l Hosp. v. Browne, 44 So. 3d 237 , 238–39 (Fla. 4th DCA 2010) (holding that a complaint arising out of a fall from a stretcher alleged a medical negligence claim where the plaintiff’s allegations raised issues concerning the adequacy of the hospital’s procedures, which depended upon the prevailing professional standard of care). 4 The routine task of assisting a patient out of bed is not an act directly related to medical care or services requiring the use of professional judgment or skill.

2016The critical question is whether the plaintiff must rely on the medical negligence standard of care as defined by the statute to prevail. 4 Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469-70 (Fla. 3d DCA 2006) (footnote omitted) (citing Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla. 2002)); see also Browne, 44 So.3d at 238-39 (determining an action to be for medical malpractice because the claim could be proven only through evidence that the hospital agents fell below the prevailing standard of professional care).

2018See Corbo, 949 So. 2d at 369-70 (holding that plaintiff's claim was subject to presuit notice requirements of chapter 766 because she alleged that her injuries were the "direct result of her receiving physical therapy treatment from the" defendants and "[t]he fact that injury was caused by the use of the equipment during the rendering of medical treatment" placed the claim "into the realm of a medical negligence claim"); cf. Broadway v. Bay Hosp., Inc., 638 So. 2d 176, 177 (Fla. 1st DCA 1994) (holding that where plaintiff alleged that she suffered injuries when her hospital bed collapsed, plai

2018See Corbo , 949 So.2d at 369-70 (holding that plaintiff's claim was subject to presuit notice requirements of chapter 766 because she alleged that her injuries were the "direct result of her receiving physical therapy treatment from the" defendants and "[t]he fact that injury was caused by the use of the equipment during the rendering of medical treatment" placed the claim "into the realm of a medical negligence claim"); cf. Broadway v. Bay Hosp., Inc. , 638 So.2d 176 , 177 (Fla. 1st DCA 1994) (holding that where plaintiff alleged that she suffered injuries when her hospital bed collapsed, pla

2004The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section 766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section 766.102(1). [1] See Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974, 980 (Fla.2002); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251, 1252 (Fla. 1st DCA 2000); Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996).

2002See Weinstock, 629 So.2d at 838 ; Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000).

2026LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011) (“The test for determining whether a defendant is 2 entitled to the benefit of the presuit screening requirements of section 766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section 766.102(1).” (internal citations omitted)); Univ. of Miami v. Bloomer, 337 So. 3d 838 , 840 (Fla. 3d DCA 2022) (observing that “a court must look beyond [the] label proffered and ‘must apply the law to the well-pleaded allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’

2018Id. at 917 .

2018As a result of the statutory obstacles imposed on medical malpractice claimants, this Court’s appellate decisions have delved into the distinction between a medical malpractice and an ordinary negligence claim, concluding that the determinative factor is whether the plaintiff, in order to prevail, must rely upon the medical negligence standard of care as set forth in section 766.102(1).6 See, e.g., Acosta v. Healthspring of Fla., Inc., 118 So. 3d 246, 248-49 (Fla. 3d DCA 2013) (concluding that hospital’s failure to transport patient timely did not implicate medical negligence standard of care,

2010“The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1)....” Tenet S. Fla. Health Sys., 991 So.2d at 399 .

2026LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011) (“The test for determining whether a defendant is 2 entitled to the benefit of the presuit screening requirements of section 766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section 766.102(1).” (internal citations omitted)); Univ. of Miami v. Bloomer, 337 So. 3d 838 , 840 (Fla. 3d DCA 2022) (observing that “a court must look beyond [the] label proffered and ‘must apply the law to the well-pleaded allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’

2026LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011) (“The test for determining whether a defendant is 2 entitled to the benefit of the presuit screening requirements of section 766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section 766.102(1).” (internal citations omitted)); Univ. of Miami v. Bloomer, 337 So. 3d 838 , 840 (Fla. 3d DCA 2022) (observing that “a court must look beyond [the] label proffered and ‘must apply the law to the well-pleaded allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’

2025See Largie, 913 So. 2d at 638-39 (“Chapter 766 of the Florida Statutes sets out a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court . . .

2021See Rockledge HMA, LLC v. Lawley, 310 So. 3d 112 , 116 (Fla. 5th DCA 2020) (holding plaintiffs’ action sounded in medical negligence because plaintiffs “[would] be required to show that Dr. Hill improperly exercised medical judgment”); see also Gouveia v. Phillips, 823 So. 2d 215, 218 (Fla. 4th DCA 2002).

2018As a result of the statutory obstacles imposed on medical malpractice claimants, this Court’s appellate decisions have delved into the distinction between a medical malpractice and an ordinary negligence claim, concluding that the determinative factor is whether the plaintiff, in order to prevail, must rely upon the medical negligence standard of care as set forth in section 766.102(1).6 See, e.g., Acosta v. Healthspring of Fla., Inc., 118 So. 3d 246, 248-49 (Fla. 3d DCA 2013) (concluding that hospital’s failure to transport patient timely did not implicate medical negligence standard of care,

2018The alleged “breach of the prevailing professional standard of care” must be testified to by a qualified medical expert. § 766.102(5), Fla. Stat. (2013); see Townes, 242 So. 3d at 309 . 5 2008) (concluding that allegations a nurse and hospital failed to render appropriate medical care and treatment implicated medical negligence standard of care so that the claim was a medical malpractice claim); Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 469-70 (Fla. 3d DCA 2006); Puentes v. Tenet Hialeah Healthsystem, 843 So. 2d 356, 357-58 (Fla. 3d DCA 2003) (concluding that plaintiff’s claim t

2018As a result of the statutory obstacles imposed on medical malpractice claimants, this Court’s appellate decisions have delved into the distinction between a medical malpractice and an ordinary negligence claim, concluding that the determinative factor is whether the plaintiff, in order to prevail, must rely upon the medical negligence standard of care as set forth in section 766.102(1).6 See, e.g., Acosta v. Healthspring of Fla., Inc., 118 So. 3d 246, 248-49 (Fla. 3d DCA 2013) (concluding that hospital’s failure to transport patient timely did not implicate medical negligence standard of care,

2013Waterman v. Stoll, 855 So.2d 271, 277 (Fla. 5th DCA 2003) (finding the adequacy of corroborating expert reports in a medical negligence claim is waived if the answer does not specifically argue adequacy and is not later amended).