766.104
Medical negligence cases; reasonable investigation required before filing.
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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.
Notes of Decisions
Cited in 104
cases (23 in the last 5 years), 1989–2026 · leading case: Hillsborough County Hosp. Auth. v. Coffaro
Hillsborough County Hosp. Auth. v. Coffaro (2002)
“See § 766.104(1), Fla. Stat. (1997). After the completion of this presuit investigation, and during the two-year period provided for in section 95.”
Hankey v. Yarian (2000)
“On February 12, 1990, 47 days prior to the running of the limitations period, the appellants tolled the statute 90 days by filing a notice of intent to initiate medical malpractice litigation pursuant to section 766.104, Florida Statutes. Thereafter, the appellants were entitled…”
Musculoskeletal Institute v. Parham (1999)
“Accordingly, Plaintiffs' contention that the repose time period was extended or tolled by their petition pursuant to Florida Statutes § 766.104 or their service of a "Notice of Intent to Initiate Litigation" as required by Florida Statute § 766.”
Tanner v. Hartog (1993)
“On February 12, 1990, 47 days prior to the running of the limitations period, the appellants tolled the statute 90 days by filing a notice of intent to initiate medical malpractice litigation pursuant to section 766.104, Florida Statutes. Thereafter, the appellants were entitled…”
Metropolitan Casualty Insurance Co. v. Tepper (2009)
“" The sentence contemplates that the uninsured motorist insurer would do so after the claimant's uninsured motorist claim is finally resolved.”
Kukral v. Mekras (1996)
“Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence.”
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“” § 766.104(1), Fla. Stat. (2016). It also provides that “good faith” may be shown if the claimant or his counsel has received a written opinion of an expert “that there appears to be evidence of medical negligence.”
Pate v. Threlkel (1995)
“We do note, however, that the plaintiffs have pled good-faith compliance with section 766.104, Florida Statutes (1989).”
Hinchman v. Gillette (2005)
“dical malpractice actions, at least one dentist in dental malpractice actions or at least one podiatrist in podiatric malpractice actions who is licensed to practice in this state or any other state and who the attorney reasonably believes is knowledgeable in the relevant issues…”
Coffey-Garcia and Garcia v. South Miami Hospital, Inc. (2016)
“See § 766.104(2), Fla. Stat. (2013). After filing their notice of intent to initiate litigation for medical malpractice, see § 766.”
Largie v. Gregorian (2005)
“Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence.”
FORT WALTON BEACH MED. CENTER v. Dingler (1997)
“II Section 766.104(1), Florida Statutes (1991), provides that "[n]o action shall be filed for personal injury or wrongful death arising out of medical negligence .”
— 766.104(1) — 37 cases
Metropolitan Casualty Insurance Co. v. Tepper (2009)
“" The sentence contemplates that the uninsured motorist insurer would do so after the claimant's uninsured motorist claim is finally resolved.”
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc. (2017)
“” § 766.104(1), Fla. Stat. (2016). It also provides that “good faith” may be shown if the claimant or his counsel has received a written opinion of an expert “that there appears to be evidence of medical negligence.”
FORT WALTON BEACH MED. CENTER v. Dingler (1997)
“II Section 766.104(1), Florida Statutes (1991), provides that "[n]o action shall be filed for personal injury or wrongful death arising out of medical negligence .”
Hankey v. Yarian (2000)
“On February 12, 1990, 47 days prior to the running of the limitations period, the appellants tolled the statute 90 days by filing a notice of intent to initiate medical malpractice litigation pursuant to section 766.104, Florida Statutes. Thereafter, the appellants were entitled…”
Musculoskeletal Institute v. Parham (1999)
“Accordingly, Plaintiffs' contention that the repose time period was extended or tolled by their petition pursuant to Florida Statutes § 766.104 or their service of a "Notice of Intent to Initiate Litigation" as required by Florida Statute § 766.”
— 766.104(2) — 46 cases
Hillsborough County Hosp. Auth. v. Coffaro (2002)
“See § 766.104(1), Fla. Stat. (1997). After the completion of this presuit investigation, and during the two-year period provided for in section 95.”
Hankey v. Yarian (2000)
“On February 12, 1990, 47 days prior to the running of the limitations period, the appellants tolled the statute 90 days by filing a notice of intent to initiate medical malpractice litigation pursuant to section 766.104, Florida Statutes. Thereafter, the appellants were entitled…”
Musculoskeletal Institute v. Parham (1999)
“Accordingly, Plaintiffs' contention that the repose time period was extended or tolled by their petition pursuant to Florida Statutes § 766.104 or their service of a "Notice of Intent to Initiate Litigation" as required by Florida Statute § 766.”
Coffey-Garcia and Garcia v. South Miami Hospital, Inc. (2016)
“See § 766.104(2), Fla. Stat. (2013). After filing their notice of intent to initiate litigation for medical malpractice, see § 766.”
Tanner v. Hartog (1993)
“On February 12, 1990, 47 days prior to the running of the limitations period, the appellants tolled the statute 90 days by filing a notice of intent to initiate medical malpractice litigation pursuant to section 766.104, Florida Statutes. Thereafter, the appellants were entitled…”
— 766.104(4) — 1 case
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