Medical Malpractice Lawsuit Funding in Florida

Florida medical malpractice claims must be filed within two years of the incident or within two years of when the injury was discovered or should have been discovered with due diligence, under section 95.11(5)(c), Florida Statutes. A four-year statute of repose runs from the incident regardless of discovery, extended to seven years where fraud, concealment, or intentional misrepresentation prevented discovery. A child under eight is protected from the repose bar until the eighth birthday. The 2023 tort reform law, HB 837, shortened the general negligence period but did not change this med-mal-specific provision. Before filing, the plaintiff must complete a presuit investigation and serve a notice of intent under section 766.106, accompanied by a verified written opinion from a qualified medical expert corroborating reasonable grounds under section 766.203. The defendant has 90 days to investigate and respond, and limitations is tolled during that period.

Pure comparative negligence for medical negligence claims. HB 837 (2023) added a 51 percent bar to section 768.81 for general negligence, but subsection 768.81(6) expressly excludes actions for personal injury or wrongful death arising out of medical negligence under chapter 766. A Florida med-mal plaintiff's recovery is reduced by the plaintiff's share of fault under section 768.81(2) but is not barred at any percentage.

Florida has no enforceable cap on non-economic damages in medical malpractice. The statutory caps in section 766.118 were struck down by the Florida Supreme Court: Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), held the wrongful death cap violated equal protection under the Florida Constitution, and North Broward Hospital District v. Kalitan, 219 So.3d 49 (Fla. 2017), extended that holding to personal injury claims. Section 766.118 remains in the statute book but cannot be applied. Damages against state and local government hospitals remain subject to the sovereign immunity limits in section 768.28.

Florida does not award prejudgment interest on unliquidated personal injury damages such as pain and suffering; interest on those amounts runs from the judgment. Prejudgment interest is available on liquidated economic losses fixed as of a date certain, such as paid medical expenses, under the loss theory recognized in Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985). A proposal for settlement under section 768.79 can shift fees and costs but does not create prejudgment interest.

Under section 47.011, Florida Statutes, a med-mal action is filed in the county where the defendant resides, where the cause of action accrued — ordinarily the county of the hospital or practice — or where the property in litigation is located. Claims against public hospitals and their employees proceed under the notice and damages provisions of section 768.28.

Florida has no dedicated consumer litigation funding statute. No statutory cap.

When in the Florida presuit process does funding become realistic?

The presuit stage under sections 766.106 and 766.203 requires a corroborating expert opinion before the notice of intent is served. Once that opinion exists and the 90-day response period has run without settlement, the claim has a filed complaint and expert support — the point at which most med-mal advances are underwritten.

The presuit expert opinion is a useful early signal because it establishes that a qualified physician found reasonable grounds on the standard of care. During the 90-day window the defendant may reject the claim, offer settlement, or admit liability and arbitrate damages. Funders review the presuit file, the response, and the complaint together.

Why does the absence of a damages cap matter for Florida med-mal funding?

Because McCall and Kalitan struck the section 766.118 caps, non-economic damages in a Florida med-mal case are limited only by the evidence and remittitur review. Catastrophic injury and wrongful death claims are underwritten on the full documented damages picture rather than against a statutory ceiling.

This does not change the liability analysis; the case still turns on expert proof of a breach and causation. It does change the value analysis, particularly for birth injury, brain injury, and death cases where non-economic loss is the largest component. Claims against public hospitals are the exception, since section 768.28 sovereign immunity limits still apply.

Does HB 837's 51 percent bar apply to a Florida medical malpractice plaintiff?

No. Section 768.81(6) carves medical negligence out of the 51 percent bar enacted in 2023. A med-mal plaintiff found partly at fault — for example, for not disclosing symptoms or missing follow-up — still recovers, reduced proportionally. This is more favorable than the rule now governing ordinary Florida negligence claims.

The distinction is frequently misunderstood because HB 837 was described as a general shift to modified comparative fault. For funding purposes, patient-fault arguments in a Florida med-mal case reduce the expected recovery but cannot eliminate it. Underwriting models the likely allocation rather than treating a fault defense as a potential total loss.