766.102
Medical negligence; standards of recovery; expert witness.
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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.
Notes of Decisions
Cited in 223
cases (39 in the last 5 years), 1990–2026 · leading case: Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc.
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“(citing § 766.102, Fla. Stat. (2016) (defining “expert”)).”
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
Michael Clare, M.D. v. Lynch (2017)
“) In turn, section 766.102 sets forth the requirements for an expert witness as follows: (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…”
The National Deaf Academy, LLC, etc. v. Denise Townes, etc. (2018)
“§ 766.102. Just last year, we concluded that through chapter 766, the Legislature "has restricted plaintiffs' *309 ability to bring medical malpractice claims.”
Baptist Medical Center of the Beaches, Inc. v. Rhodin (2010)
“202, Florida Statutes (2009), which defines “medical expert” in subsection (6) and cross-references the requirements of section 766.102, Florida Statutes (2009).”
Simon Dockswell and Sandra Dockswell v. Bethesda Memorial Hospital, Inc. (2015)
“The trial court ultimately denied the requested instruction, explaining that the Dockswells had the ability to present direct evidence of the nurse’s negligence, whereas the word “discovery” in section 766.102 (and thus the instruction) suggests a situation where a patient is…”
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
Joseph S. Chirillo, Jr., M.D. v. Robert Granicz, etc. (2016)
“102(l)’s standard of care was incorrect because there is a difference between an action in general medical malpractice (to which section 766.102 would apply) and one for a duty to prevent suicide (for which foreseeability of the suicide is the relevant consideration).”
Oken v. Williams (2009)
“Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007).”
Ruby Saunders, etc. v. Willis Dickens, M.D. (2014)
“See § 766.102, Fla. Stat. (2013). The standard of professional care is a level of care, skill, and treatment that, in consideration of all surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably prudent health care providers.”
Linn v. Fossum (2006)
“[6] Allowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care.”
— 766.102(1) — 89 cases
Linn v. Fossum (2006)
“[6] Allowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care.”
Weinstock v. Groth (1993)
The National Deaf Academy, LLC, etc. v. Denise Townes, etc. (2018)
“§ 766.102. Just last year, we concluded that through chapter 766, the Legislature "has restricted plaintiffs' *309 ability to bring medical malpractice claims.”
Joseph S. Chirillo, Jr., M.D. v. Robert Granicz, etc. (2016)
“102(l)’s standard of care was incorrect because there is a difference between an action in general medical malpractice (to which section 766.102 would apply) and one for a duty to prevent suicide (for which foreseeability of the suicide is the relevant consideration).”
— 766.102(1)(1995) — 1 case
Jhagroo v. Sinclair (1997)
— 766.102(12) — 9 cases
Richard DeLisle v. Crane Co. (2018)
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
Riggenbach v. Rhodes (2019)
— 766.102(14) — 7 cases
Michael Clare, M.D. v. Lynch (2017)
“) In turn, section 766.102 sets forth the requirements for an expert witness as follows: (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…”
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
Riggenbach v. Rhodes (2019)
— 766.102(2) — 9 cases
Williams v. Oken (2011)
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
— 766.102(2)(a) — 10 cases
Baptist Medical Center of the Beaches, Inc. v. Rhodin (2010)
“202, Florida Statutes (2009), which defines “medical expert” in subsection (6) and cross-references the requirements of section 766.102, Florida Statutes (2009).”
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
Padgett v. Sims (1997)
— 766.102(2)(b) — 10 cases
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
Stewart v. Price (1998)
Meyer v. Caruso (1999)
Hughes v. Slomka (2002)
— 766.102(2)(c) — 11 cases
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
— 766.102(2)(c)(2) — 5 cases
Oken v. Williams (2009)
“Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007).”
Meyer v. Caruso (1999)
Loadholtz v. Andrews (2003)
Charlonne v. Rosenthal (1994)
Green v. Goldberg (1994)
— 766.102(2)(e) — 1 case
Padgett v. Sims (1997)
— 766.102(3) — 9 cases
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“(citing § 766.102, Fla. Stat. (2016) (defining “expert”)).”
Simon Dockswell and Sandra Dockswell v. Bethesda Memorial Hospital, Inc. (2015)
“The trial court ultimately denied the requested instruction, explaining that the Dockswells had the ability to present direct evidence of the nurse’s negligence, whereas the word “discovery” in section 766.102 (and thus the instruction) suggests a situation where a patient is…”
— 766.102(3)(a) — 1 case
— 766.102(3)(b) — 5 cases
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“(citing § 766.102, Fla. Stat. (2016) (defining “expert”)).”
Simon Dockswell and Sandra Dockswell v. Bethesda Memorial Hospital, Inc. (2015)
“The trial court ultimately denied the requested instruction, explaining that the Dockswells had the ability to present direct evidence of the nurse’s negligence, whereas the word “discovery” in section 766.102 (and thus the instruction) suggests a situation where a patient is…”
The National Deaf Academy, LLC, etc. v. Denise Townes, etc. (2018)
“§ 766.102. Just last year, we concluded that through chapter 766, the Legislature "has restricted plaintiffs' *309 ability to bring medical malpractice claims.”
Simon Dockswell and Sandra Dockswell v. Bethesda Memorial Hospital, Inc., a Florida corporation (2015)
Jackson v. United States (2020)
— 766.102(4) — 12 cases
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“(citing § 766.102, Fla. Stat. (2016) (defining “expert”)).”
Kenyon v. Miller (2000)
Archer v. Maddux (1994)
— 766.102(5) — 36 cases
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
Baptist Medical Center of the Beaches, Inc. v. Rhodin (2010)
“202, Florida Statutes (2009), which defines “medical expert” in subsection (6) and cross-references the requirements of section 766.102, Florida Statutes (2009).”
Oken v. Williams (2009)
“Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007).”
Michael Clare, M.D. v. Lynch (2017)
“) In turn, section 766.102 sets forth the requirements for an expert witness as follows: (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…”
Riggenbach v. Rhodes (2019)
— 766.102(5)(a) — 25 cases
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
Michael Clare, M.D. v. Lynch (2017)
“) In turn, section 766.102 sets forth the requirements for an expert witness as follows: (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…”
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
Davis v. Karr (2019)
— 766.102(5)(a)(1) — 4 cases
Michael Clare, M.D. v. Lynch (2017)
“) In turn, section 766.102 sets forth the requirements for an expert witness as follows: (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…”
Gelsthorpe v. Weinstein (2005)
Oken v. Williams (2009)
“Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007).”
— 766.102(5)(a)(l) — 2 cases
Oken v. Williams (2009)
“Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007).”
Weiss v. Pratt (2011)
— 766.102(5)(b) — 3 cases
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
— 766.102(5)(c) — 4 cases
Baptist Medical Center of the Beaches, Inc. v. Rhodin (2010)
“202, Florida Statutes (2009), which defines “medical expert” in subsection (6) and cross-references the requirements of section 766.102, Florida Statutes (2009).”
— 766.102(5)(e) — 1 case
Baptist Medical Center of the Beaches, Inc. v. Rhodin (2010)
“202, Florida Statutes (2009), which defines “medical expert” in subsection (6) and cross-references the requirements of section 766.102, Florida Statutes (2009).”
— 766.102(6) — 9 cases
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
Largie v. Gregorian (2005)
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
— 766.102(6)(a) — 7 cases
Barrio v. Wilson (2000)
Goss v. Permenter (2002)
Weiss v. Pratt (2011)
— 766.102(6)(a)(b) — 2 cases
— 766.102(6)(b) — 1 case
Fuentes v. Spirer (2000)
— 766.102(6)(c) — 1 case
Pevsner v. Frederick (1995)
— 766.102(7) — 5 cases
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
— 766.102(9) — 6 cases
Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D. (2018)
“202(6) refers to and incorporates the requirements of section 766.102, Florida Statutes (2011), which - 16 - governs the qualifications of expert witnesses in all medical malpractice cases.”
In re Amendments to the Florida Evidence Code (2017)
“We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012).”
Plantz v. John (2015)
Holden v. Bober (2010)
— 766.102(9)(a) — 3 cases
Paley v. Maraj (2005)
— 766.102(9)(b)(2) — 1 case
— 766.102(c)(2) — 1 case
Catron v. ROGER BOHN, DC, PA (1991)
“I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp. 1988).”
— 766.102(l) — 1 case
Joseph S. Chirillo, Jr., M.D. v. Robert Granicz, etc. (2016)
“102(l)’s standard of care was incorrect because there is a difference between an action in general medical malpractice (to which section 766.102 would apply) and one for a duty to prevent suicide (for which foreseeability of the suicide is the relevant consideration).”
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