Florida Statute 766.102 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.102

766.102 Medical negligence; standards of recovery; expert witness.—

(1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.

(3)(a) As used in this subsection, the term:

1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services.

2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services.

3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:

(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same specialty;

b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

(b) If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice or consultation as a general practitioner;

2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.

(c) If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered;

2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.

(6) A physician licensed under chapter 458 or chapter 459 who qualifies as an expert witness under subsection (5) and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff.

(7) Notwithstanding subsection (5), in a medical negligence action against a hospital, a health care facility, or medical facility, a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action.

(8) If a health care provider described in subsection (5), subsection (6), or subsection (7) is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty, a specialist trained in the evaluation, treatment, or diagnosis for that condition shall be considered a similar health care provider.

(9)(a) In any action for damages involving a claim of negligence against a physician licensed under chapter 458, osteopathic physician licensed under chapter 459, podiatric physician licensed under chapter 461, or chiropractic physician licensed under chapter 460 providing emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians, osteopathic physicians, podiatric physicians, and chiropractic physicians who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.

(b) For the purposes of this subsection:

1. The term “emergency medical services” means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.

2. “Substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred.

(10) In any action alleging medical negligence, an expert witness may not testify on a contingency fee basis.

(11) Any attorney who proffers a person as an expert witness pursuant to this section must certify that such person has not been found guilty of fraud or perjury in any jurisdiction.

(12) If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.

(13) A health care provider’s failure to comply with or breach of any federal requirement is not admissible as evidence in any medical negligence case in this state.

History.—s. 12, ch. 76-260; s. 8, ch. 77-64; s. 1, ch. 77-174; s. 10, ch. 85-175; s. 78, ch. 88-1; s. 30, ch. 91-110; s. 1149, ch. 97-102; ss. 229, 296, ch. 98-166; s. 48, ch. 2003-416; s. 153, ch. 2004-5; s. 10, ch. 2011-233; s. 2, ch. 2013-108.

Note.—Former s. 768.45.

F.S. 766.102 on Google Scholar

F.S. 766.102 on Casetext

Amendments to 766.102

Arrestable Offenses / Crimes under Fla. Stat. 766.102

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.102.

Annotations, Discussions, Cases:

Cases Citing Statute 766.102

Total Results: 20

Pablo Guzman, M.D. and Holy Cross Hospital, Inc. v. Maria Joanna Lazzari, the Plenary Guardian of the Person and Property of Morela Lazzari

Court: Fla. Dist. Ct. App. | Date Filed: 2024-07-03T00:00:00-07:00

Snippet: under section 766.102, defendants are not. Indeed, “nothing in section 766.102(5) requires a …surgeon]. . . , pursuant to Florida Statutes 766.102(5)(a)(1) and (2) which requires that in …the cardiac surgeon’s culpability under section 766.102(5), Florida Statutes (2013). The parties agree…441 (Fla. 2014) (emphasis omitted); see also § 766.102(1), Fla. Stat. (2013). A defending medical…to that of a “reasonably prudent” physician. § 766.102(1), Fla. Stat. (2013). A defending medical provider

PHENGSANITH PRADAXAY v. JAMES ERASMUS KENDRICK, IV, M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC. D/B/A ADVENTHEALTH

Court: Fla. Dist. Ct. App. | Date Filed: 2024-05-17T00:00:00-07:00

Snippet: witness as set forth in s. 766.102.” § 766.202(6), Fla. Stat. (2021). Section 766.102(5) outlines several qualifications… she complied with section 766.102(5)(a)1. She highlighted section 766.102(5)’s failure to use “sub-specialty…requirement in 2013. See § 766.102(5), Fla. Stat. (2013). At the time of section 766.102(5)’s enactment, “specialty…“prevailing professional standard of care.” § 766.102(5)(a), Fla. Stat. (2021). The qualification relevant…or on whose behalf the testimony is offered.” § 766.102(5)(a)1., Fla. Stat. (2021). The trial court determines

In Re: Amendments to Florida Rule of Appellate Procedure 9.130

Court: Fla. | Date Filed: 2024-05-02T00:00:00-07:00

Snippet: corroborating expert witness under subsections 766.102(5)-(9), and (12), Florida Statutes.; or

MICHAEL R. BARBER v. MANATEE MEMORIAL HOSPITAL, LIMITED PARTNERSHIP

Court: Fla. Dist. Ct. App. | Date Filed: 2024-03-22T00:00:00-07:00

Snippet: summary judgment, the trial court quotes section 766.102(3)(b), Florida Statues, without explanation or

Lawrence Peter Metzler, Jr. v. Carolina Gladys Valdez, M.D.

Court: Fla. Dist. Ct. App. | Date Filed: 2024-01-03T00:00:00-08:00

Snippet: Plaintiff’s reading of section 766.102(5), Florida Statutes. Section 766.102(5) governs the qualifications…Plaintiff nonetheless argues that pursuant to section 766.102, Florida Statutes (2022), in order to avoid entry…argument, Plaintiff points to the language in section 766.102(5)(a), Florida Statutes (2022), stating: “If the…defendant health care provider, nothing in section 766.102(5) requires a defendant health care provider to…standard of care for that health care provider.” § 766.102(1), Fla. Stat. (2022); see also Saunders v. Dickens

In Re: Amendment to Florida Rule of Appellate Procedure 9.130

Court: Fla. | Date Filed: 2023-12-14T00:00:00-08:00

Snippet: corroborating expert witness under subsections 766.102(5)-(9), Florida Statutes.” Because the amendment…(3)(H) to reference subsection (12) of section 766.102, because subsection (12) also articulates the qualifications…corroborating expert witness under subsections 766.102(5)-(9), and (12), Florida Statutes.

ADVENTIST HEALTH SYSTEM/SUNBELT, INC. D/B/A FLORIDA HOSPITAL ALTAMONTE AND WILLIAM HUETHER, III, M.D. vs SALLY MACHALEK AND MATTHEW APTER, M.D.

Court: Fla. Dist. Ct. App. | Date Filed: 2023-10-06T00:00:00-07:00

Snippet: corroborating expert witness under subsections 766.102(5)–(9), Florida Statutes.” Fla. R. App. P. 9.130…qualifications of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes.” Univ. of Fla. Bd. of…Proc. 9.130, 367 So. 3d 1204 (Fla. 2023). Section 766.102(5)-(9) specifically outlines the requirements for

ZADYE THOMAS vs ST. VINCENT'S MEDICAL CENTER, INC., A FLORIDA NOT FOR PROFIT CORPORATION

Court: Fla. Dist. Ct. App. | Date Filed: 2023-08-11T00:00:00-07:00

Snippet: required to plead a medical malpractice claim. See § 766.102(1), Fla. Stat. Appellant included customary, garden-variety

University of Florida Board of Trustees v. Laurie Carmody

Court: Fla. | Date Filed: 2023-07-06T00:00:00-07:00

Snippet: as set forth in s. 766.102.” § 766.202(6), Fla. Stat. (2016). Section 766.102, in turn, provides… of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes. In re Amend. to Fla. …records and meets [certain] criteria . . . .” § 766.102(5), Fla. Stat. (2016). These certain criteria depend…against whom . . . the testimony is offered.” Id. § 766.102(5)(a). If the provider accused of malpractice…research program in the same specialty. § 766.102(5)(a), Fla. Stat. (2016). If the provider

In Re: Amendment to Florida Rule of Appellate Procedure 9.130

Court: Fla. | Date Filed: 2023-07-06T00:00:00-07:00

Snippet: of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes. We identify subsections…corroborating expert witness under subsections 766.102(5)-(9), Florida Statutes. (4)-(5)

MARIA MARTINEZ v. DON JOHN PEREZ-ORTIZ, M. D. AND THE PEREZ EYE CENTER, P. L.

Court: Fla. Dist. Ct. App. | Date Filed: 2022-09-23T00:53:00-07:00

Snippet: expert witness as set forth in s. 766.102." Section 766.102(5), in turn, provides in relevant…comply with the presuit requirements of sections 766.102(5), .106, .202(6), and .203(2), Florida Statutes…quot; as Dr. Perez Ortiz, pursuant to section 766.102(5)(a)1; and (3) because Dr. Hamburger's affidavit…affidavit cannot satisfy the requirements of sections 766.102(5)(a)1, .202(6), and .203(2), Ms. Martinez failed…quot; as Dr. Perez Ortiz, as required by section 766.102(5)(a)1. Specifically, the trial court found

SRINIVAS RAO DONTINENI, M.D. vs PATRICIA SANDERSON, JOSEPH BOULAY, M.D., ALL STAR RECRUITING LOCUMS, LLC, ANGELO FERNANDES, M.D., ARVIND KUMAR, M.D., BREVARD INTERNAL MEDICINE & WALK IN CLINIC, PLLC, ET AL.

Court: Fla. Dist. Ct. App. | Date Filed: 2022-07-01T00:00:00-07:00

Snippet: that health care provider is a specialist. Id. § 766.102(5)(a)1. Alternatively, if the health care provider…similar health care provider.” Id. § 766.102(8). The trial court must determine whether the … a hospitalist is a “specialty” under section 766.102(5)(a)1. For these reasons, we grant Dr.

JAMES J. MC MANUS v. DR. G. A. GAMEZ

Court: Fla. Dist. Ct. App. | Date Filed: 2019-08-07T00:53:00-07:00

Snippet: expert." Townes, 242 So. 3d at 309 (quoting § 766.102(1), Fla. Stat. (2008)). In order to determine

State of Florida, Florida Department of Health, Celeste Philip, M.D., M.P.H., in her official capacity as Surgeon General and Secretary of Health etc v. Gainesville Woman Care, LLC, d/b/a Bread and Roses Women's Health Center, and Medical Students for Choice

Court: Fla. Dist. Ct. App. | Date Filed: 2019-08-01T00:53:00-07:00

Snippet: practice standards are no novelty. See, e.g., §§ 766.102(1) & (3) (establishing the prevailing professional…the key issue in medical malpractice actions), 766.102(3)(b) (memorializing the standard of care related

Specialty Hospital-Gainesville, Inc. v. Charles Barth

Court: Fla. Dist. Ct. App. | Date Filed: 2019-07-15T00:53:00-07:00

Snippet: negligence standard of care as set forth in section 766.102(1).” National Deaf Acad., LLC v. Townes, 242 So

In Re: Amendments to the Florida Evidence Code

Court: Fla. | Date Filed: 2019-05-23T00:53:00-07:00

Snippet: - 22 - Evidence Code and to section 766.102, Florida Statutes (2012).” (emphasis added) (footnote…changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).” (footnote omitted));…ch. 2012–152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes, see ch. 2011–233,

Riggenbach v. Rhodes

Court: Fla. Dist. Ct. App. | Date Filed: 2019-03-29T00:00:00-07:00

Citation: 267 So. 3d 551

Snippet: section 766.102 in 2013 specifically explained the effect of the amendment: The bill amends s. 766.102(5),…requirement of sections 766.203, 776.202(6), and 766.102(5)(a), Florida Statutes (2014), that he provide…similar specialty " as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012) (emphasis added). The …negligence claim. Id. The 2012 version of section 766.102 also allowed the trial court to determine whether…other than those specified in the statute. Id. § 766.102(14). In Oliveros v. Adventist Health Systems/Sunbelt

Riggenbach v. Rhodes

Court: Fla. Dist. Ct. App. | Date Filed: 2019-03-29T00:00:00-07:00

Citation: 267 So. 3d 551

Davis v. Karr

Court: Fla. Dist. Ct. App. | Date Filed: 2019-01-25T00:00:00-08:00

Citation: 264 So. 3d 279

Snippet: the statutory presuit requirements of section 766.102(5)(a)1., Florida Statutes (2013), because none …requirements of an expert witness as set forth in s. 766.102. Applying these two statutes to the instant case…would qualify as an expert witness under section 766.102, corroborating that reasonable grounds existed …, the Legislature specifically amended section 766.102(5), regarding the requirements for qualification…quot;same specialty" requirements of section 766.102(5)(a). We conclude that this issue has not been

Davis v. Karr

Court: Fla. Dist. Ct. App. | Date Filed: 2019-01-25T00:00:00-08:00

Citation: 264 So. 3d 279