Florida Statute 766.104 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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F.S. 766.104

766.104 Medical negligence cases; reasonable investigation required before filing.—

(1) No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence. If the court determines that such certificate of counsel was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court shall award attorney’s fees and taxable costs against claimant’s counsel, and shall submit the matter to The Florida Bar for disciplinary review of the attorney.

(2) Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42 from which the clerk shall remit $4.50 to the Department of Revenue for deposit into the General Revenue Fund, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

(3) For purposes of conducting the investigation required by this section, and notwithstanding any other provision of law to the contrary, subsequent to the death of a person and prior to the administration of such person’s estate, copies of all medical reports and records, including bills, films, and other records relating to the care and treatment of such person that are in the possession of a health care practitioner as defined in s. 456.001 shall be made available, upon request, to the spouse, parent, child who has reached majority, guardian pursuant to chapter 744, surrogate or proxy pursuant to chapter 765, or attorney in fact of the deceased pursuant to chapter 709. A health care practitioner complying in good faith with the provisions of this subsection shall not be held liable for civil damages attributable to the disclosure of such records or be subject to any disciplinary action based on such disclosure.

History.—s. 12, ch. 85-175; s. 68, ch. 86-160; s. 8, ch. 86-287; s. 71, ch. 95-211; s. 1151, ch. 97-102; s. 1, ch. 2001-155; s. 79, ch. 2004-265; s. 42, ch. 2008-111; s. 28, ch. 2019-58.

Note.—Former s. 768.495.

F.S. 766.104 on Google Scholar

F.S. 766.104 on Casetext

Amendments to 766.104

Arrestable Offenses / Crimes under Fla. Stat. 766.104

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 766.104.

Annotations, Discussions, Cases:

Cases Citing Statute 766.104

Total Results: 20

Ortiz v. Winn-Dixie, Inc., Travelers Insurance, and Sedgwick CMS

Court: District Court of Appeal of Florida | Date Filed: 2024-12-23

Snippet: “purchased” a ninety- day extension under section 766.104(2). The statute had run 23 days from October

University of Miami, etc. v. Shanay Hall Jones, etc.

Court: District Court of Appeal of Florida | Date Filed: 2024-05-15

Snippet: filing a medical malpractice action. See, e.g., § 766.104(1), Fla. Stat. (2023); § 766.106(2)(a), Fla. Stat

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: District Court of Appeal of Florida | Date Filed: 2023-10-06

Snippet: ninety days by Ms. Machalek pursuant to section 766.104(2)). Ms. Machalek disagrees and claims she learned

University of Florida Board of Trustees v. Laurie Carmody

Court: Supreme Court of Florida | Date Filed: 2023-07-06

Snippet: belief that there has been negligence . . . .” § 766.104(1), Fla. Stat. (emphasis added). And when an action

ISRAEL REYES, etc. v. BAPTIST HEALTH SOUTH FLORIDA FOUNDATION, INC., etc.

Court: District Court of Appeal of Florida | Date Filed: 2023-03-29

Snippet: the petition for extension pursuant to section 766.104(2), Florida Statutes (2008), and not from the

In Re: Amendments to Florida Rules of Civil Procedure 1.070 and 1.650

Court: Supreme Court of Florida | Date Filed: 2023-01-19

Snippet: If an extension has been granted under section 766.104(2), Florida Statutes, or by agreement of the parties

ESTHER MARIN-CASARIEGO, M.D. v. SOPHIA LINALE

Court: District Court of Appeal of Florida | Date Filed: 2022-11-10

Snippet: including presuit notice and screening. See § 766.104, 766.106, 766.201- .212, Fla. Stat. (2021). Where

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

Court: District Court of Appeal of Florida | Date Filed: 2022-09-23

Snippet: the statute of limitations pursuant to section 766.104(2), giving Ms. Martinez until August 8,

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: District Court of Appeal of Florida | Date Filed: 2022-07-01

Snippet: Julie, M.D., supporting her allegations. See id. § 766.104(1). Dr. Julie is board certified in internal medicine

William Boyle v. Myles Rubin Samotin, M.D.

Court: Supreme Court of Florida | Date Filed: 2022-04-21

Snippet: statute of limitations purchased under section 766.104(2) is not added to what remains of the original

MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a CLEVELAND CLINIC MARTIN HEALTH v. VINCENT GORHAM, III

Court: District Court of Appeal of Florida | Date Filed: 2022-04-20

Snippet: negligence in the care or treatment of the claimant.” § 766.104(1), Fla. Stat. (2019). A claimant is also required

UNIVERSITY OF MIAMI, etc. v. SHANAY HALL JONES, etc.

Court: District Court of Appeal of Florida | Date Filed: 2022-04-20

Snippet: the prospective defendant with a 1 See § 766.104(1), Fla. Stat. (2017); § 766.203(1)-(2), Fla. Stat

DIAL 4 CARE, INC. v. ELIJAH BRINSON

Court: District Court of Appeal of Florida | Date Filed: 2021-03-17

Snippet: filing medical malpractice suits. See, e.g., §§ 766.104, 766.106, 766.201–.212, Fla. Stat. Among these

Davis v. Karr

Court: District Court of Appeal of Florida | Date Filed: 2019-01-25

Citation: 264 So. 3d 279

Snippet: duty to reasonably investigate the claim. See § 766.104(1), Fla. Stat. (2013). The trial court disagreed

Davis v. Karr

Court: District Court of Appeal of Florida | Date Filed: 2019-01-25

Citation: 264 So. 3d 279

Snippet: duty to reasonably investigate the claim. See § 766.104(1), Fla. Stat. (2013). The trial court disagreed

Gindel v. Centex Homes

Court: District Court of Appeal of Florida | Date Filed: 2018-09-12

Citation: 267 So. 3d 403

Snippet: notice and investigation requirements of sections 766.104(1) and 766.106(4), Florida Statutes (1989), constituted

Gindel v. Centex Homes

Court: District Court of Appeal of Florida | Date Filed: 2018-09-12

Citation: 267 So. 3d 403

Snippet: notice and investigation requirements of sections 766.104(1) and 766.106(4), Florida Statutes (1989), constituted

ROBERT C. GINDEL v. CENTEX HOMES

Court: District Court of Appeal of Florida | Date Filed: 2018-09-12

Snippet: notice and investigation requirements of sections 766.104(1) and 766.106(4), Florida Statutes (1989), constituted

Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D.

Court: Supreme Court of Florida | Date Filed: 2018-09-06

Citation: 252 So. 3d 1143

Snippet: the defendants were negligent. Section 766.104 refers to a written medical opinion "that there

Bay County Board of County Commissioners v. Seeley

Court: District Court of Appeal of Florida | Date Filed: 2017-04-24

Citation: 217 So. 3d 228, 2017 WL 1437375, 2017 Fla. App. LEXIS 5667

Snippet: If an extension has been granted under section 766.104(2), Florida Statutes, or by agreement of the parties