What Is Florida’s Affidavit of Merit in Wrongful Death Cases?

Quick answer: Florida generally requires a verified written medical expert opinion before a wrongful death lawsuit based on medical negligence can proceed through the required presuit process. Often called an “affidavit of merit,” this opinion helps establish reasonable grounds to believe that a healthcare provider’s negligence caused injury. The requirement does not apply to every wrongful death case.

When a loved one dies because of suspected medical negligence, families often have questions about what happened and whether someone can be held accountable. In Florida, wrongful death cases involving medical malpractice must generally follow additional legal procedures before a lawsuit can be filed.

One of these requirements involves obtaining a medical expert’s written opinion supporting the potential negligence claim. This process can take time, making an early investigation especially important.

For families in Orlando and throughout Central Florida, the Law Offices of Amanda E. Wright can help explain how these requirements may affect a potential wrongful death claim and what steps may be necessary to pursue legal action.

What Is Florida’s Affidavit of Merit?

In Florida medical malpractice cases, an affidavit of merit commonly refers to the verified written medical expert opinion required during the presuit investigation process.

Under Florida Statutes § 766.203, a claimant must investigate whether reasonable grounds exist to believe that a healthcare provider was negligent and that the negligence resulted in injury.

To support the claim, the claimant must submit a verified written opinion from a qualified medical expert when providing the required notice of intent to initiate medical negligence litigation.

The purpose of this requirement is to establish a reasonable medical basis for the allegations before litigation begins. The expert opinion does not guarantee that the claim will succeed or establish that the healthcare provider is legally responsible.

Florida also requires an attorney filing a medical negligence lawsuit to certify that a reasonable investigation supports a good-faith belief in the claim, as outlined in Florida Statutes § 766.104.

Does the Affidavit of Merit Requirement Apply to Wrongful Death Cases?

Yes, when a wrongful death claim arises from alleged medical negligence, Florida’s medical malpractice presuit requirements generally apply.

Florida Statutes § 766.203 expressly includes wrongful death actions brought under § 768.19 within its medical negligence presuit investigation requirements.

For example, these requirements may apply when a patient dies following alleged medical negligence involving:

• A failure to diagnose a serious medical condition
• Surgical errors
• Medication errors
• Failure to properly monitor a patient
• Delayed or improper medical treatment
• Anesthesia-related negligence
• Failure to recognize or respond to medical complications
• Other departures from the applicable medical standard of care

However, not every wrongful death lawsuit requires a medical expert opinion. Claims arising from car accidents, dangerous property conditions, or other forms of negligence generally do not fall under these medical malpractice presuit provisions.

The distinction depends on the nature of the alleged negligence and whether the claim arises from the rendering of, or failure to render, medical care or services.

An attorney can evaluate whether the circumstances of a particular death trigger Florida’s medical malpractice presuit requirements.

What Does The Affidavit Of Merit Establish?

The medical expert opinion helps establish that there are reasonable grounds to pursue the claim. It is not simply a statement that the family believes a doctor, hospital, or other health care provider made a mistake. Florida law requires the presuit investigation to address whether the prospective defendant was negligent in the care or treatment of the claimant and whether that negligence resulted in injury.

The Florida Supreme Court has explained that the purpose of the corroborating medical opinion is to assure that a medical malpractice claim has a legitimate basis rather than being frivolous.

That distinction can be especially important in wrongful death cases because the family may understandably have questions about what happened. A medical professional’s review helps determine whether the available medical evidence supports a potential negligence claim.

Who Provides the Medical Expert Opinion?

The medical opinion must come from an expert who meets Florida’s statutory qualification requirements.

Under Florida Statutes § 766.102, the qualifications of a medical expert can depend on the healthcare provider involved, the applicable medical specialty, and the nature of the alleged negligence.

For example, when a claim involves a specialist physician, Florida law may require an expert with qualifications relating to the same specialty.

An attorney investigating a potential medical malpractice wrongful death claim generally:

• Reviews the circumstances surrounding the death
• Obtains and examines relevant medical records
• Identifies potentially responsible healthcare providers
• Consults with an appropriately qualified medical expert
• Determines whether the available evidence supports moving forward with the required presuit process

Because medical malpractice cases can involve complex treatment decisions and multiple healthcare providers, identifying an appropriately qualified expert is an important part of the investigation.

What Happens Before A Wrongful Death Lawsuit Is Filed?

Florida’s medical negligence process includes several steps before litigation.

1. The Claim Is Investigated

The attorney reviews the circumstances surrounding the death and gathers relevant information and medical records. The investigation may involve: 

• Reviewing hospital records 
• Physician records
• Diagnostic information
• Medication records
• Operative reports
• Other documentation

2. A Medical Expert Reviews The Claim

A qualified medical professional reviews the available information to determine whether there are reasonable grounds to believe medical negligence occurred and caused injury.

The resulting verified written medical opinion provides the required corroboration.

3. Presuit Notice Is Provided

After completing the required investigation, the claimant must provide each prospective defendant with notice of the intent to initiate medical negligence litigation.

Under Florida Statutes § 766.106, this notice must comply with specific requirements, including providing the required supporting materials.

The notice process also involves a medical records authorization under Florida Statutes § 766.1065. Failure to provide a compliant authorization can affect the validity of the notice.

4. The Prospective Defendant Investigates

After the required presuit notice is provided, Florida law generally establishes a 90-day period during which the prospective defendant or its insurer investigates the claim.

During this period, the parties may exchange information through statutory informal discovery procedures, including document requests and unsworn statements.

The prospective defendant may reject the claim, offer a settlement, or make other responses permitted by law. The timing and outcome of this process can affect when the claimant may proceed with a lawsuit.

5. The Lawsuit May Proceed

If the matter is not resolved during the pre-suit process, the claimant may proceed with litigation, subject to the applicable legal requirements and deadlines.

What Happens If the Affidavit of Merit Requirement Is Not Met?

Failing to comply with Florida’s medical malpractice presuit requirements can have serious consequences for a wrongful death claim.

Under Florida Statutes § 766.206, courts may review whether the required presuit investigation provided a reasonable basis for the medical negligence allegations.

Depending on the circumstances, failure to satisfy applicable requirements may result in dismissal or other legal consequences.

However, not every procedural defect has the same effect. The outcome may depend on the nature of the deficiency, whether it can be corrected, and whether the applicable filing deadlines have expired.

Because of these risks, families should not assume that they can file a medical malpractice wrongful death lawsuit first and complete the required investigation afterward.

How Is a Wrongful Death Claim Different From Other Medical Malpractice Claims?

When medical negligence results in a patient’s death, the resulting legal action may involve both Florida’s medical malpractice laws and its Wrongful Death Act.

Under Florida Statutes § 768.20, a wrongful death action is brought by the decedent’s personal representative on behalf of eligible survivors and the estate.

Florida Statutes § 768.21 identifies the damages that may be available, including certain losses related to support and services, medical expenses, funeral expenses, and other damages recognized by law.

However, Florida places specific restrictions on certain noneconomic damages in wrongful death cases arising from medical negligence. For example, adult children and parents of adult children face limitations on recovering particular damages for mental pain and suffering and lost companionship.

The verified medical expert opinion addresses whether there are reasonable grounds for the underlying medical negligence claim. Florida’s wrongful death laws separately determine who may bring the action and which damages may be recovered.

How Long Do Families Have to File a Medical Malpractice Wrongful Death Claim in Florida?

Florida generally provides a two-year statute of limitations for wrongful death actions. Medical malpractice claims are also generally subject to a two-year limitations period, although the starting point and applicable exceptions can differ.

Under Florida Statutes § 95.11, medical malpractice claims are generally subject to additional restrictions, including a four-year statute of repose, with certain exceptions.

Florida law also provides procedures that can affect these deadlines:

• Section 766.104 allows a qualifying 90-day extension for the required investigation when properly obtained.
• Section 766.106 provides for tolling of the statute of limitations during the applicable medical negligence presuit screening process.

These rules do not mean that every family automatically receives additional time to file a lawsuit. The applicable deadlines depend on the circumstances and compliance with statutory requirements.

For families in Orlando and throughout Central Florida, contacting an attorney early can provide more time to obtain medical records, consult qualified experts, investigate potential negligence, and determine the deadlines that apply to the claim.

Contact The Law Offices Of Amanda E. Wright

Losing a loved one is difficult enough without having to determine whether medical negligence contributed to the death. If your family believes a doctor, hospital, nursing facility, or other health care provider may have caused or contributed to a loved one’s death, understanding Florida’s presuit requirements is an important first step.

If your family is dealing with a potential wrongful death case in or around Orlando, Florida, contact the attorneys at the Law Offices of Amanda E. Wright for help evaluating your legal options. The attorneys can review the circumstances of your loved one’s death, explain whether Florida’s medical negligence presuit requirements may apply, and help your family understand the next steps.