Risk & Rulings | Recent Florida Appellate Decisions

Cordero v. Martin Memorial Medical Center
Fla. 4th DCA (2026) – Medical Malpractice

Holding
In this Florida medical malpractice action, the Fourth District Court of Appeal held that dismissal was proper where the plaintiff’s expert gynecologist submitted a presuit affidavit concluding that the defendant violated the standard of care in assessing her baby in utero, but failed to provide facts or medical theory to corroborate that conclusion as required under Chapter 766, Florida Statutes.

Discussion
Although access to courts is generally encouraged, section 766.302(2), Florida Statutes, requires that a plaintiff’s presuit affidavit “corroborate” that a reasonable presuit investigation was conducted. The Fourth DCA clarified that this requirement cannot be satisfied by a conclusory affidavit that merely asserts negligence occurred without describing the manner in which the defendant was negligent with reference to the specific facts of the case.

Absent a complete and factually supported presuit affidavit, a defendant is deprived of the ability to evaluate and test the merits of the claim during the Chapter 766 presuit process. Because the plaintiff’s expert affidavit failed to provide the required factual and medical support, dismissal of the action was warranted.

Practical Implications

• Florida medical malpractice plaintiffs must provide factually supported expert affidavits during presuit under § 766.302(2).
• Conclusory allegations of a deviation from the standard of care are insufficient to satisfy Chapter 766.
• Medical liability insurers should closely review presuit affidavits to determine whether they articulate a specific factual and medical basis for alleged negligence.

Bystrak v. McLean
Fla. 6th DCA (2026) – Medical Malpractice / Personal Injury

Holding
In this Florida medical malpractice action, the Sixth District Court of Appeal held that a nurse’s motion to dismiss was not waived by his co-defendant’s failure to provide medical records to the claimant during presuit in a case involving the alleged failure to protect a patient from falling after the administration of a sedative.

Discussion
A medical malpractice claimant issued a notice of intent pursuant to Chapter 766, Florida Statutes, to a nurse and the ambulatory surgery center where he provided care. As part of the presuit process, the claimant requested patient records from the ambulatory surgery center detailing the care at issue. The ambulatory surgery center failed to provide those records and, therefore, waived its right to require a presuit affidavit from the claimant under Florida’s medical malpractice presuit requirements.

Florida Rule of Civil Procedure 1.650, promulgated by the Florida Supreme Court, provides that notice to one defendant constitutes notice to each defendant bearing a legal relationship to the defendant to whom notice is supplied. Despite this procedural rule, the Sixth DCA held that the ambulatory surgery center’s waiver was not imputable to its nurse, who received no such request for records. Accordingly, the nurse could independently invoke sections 766.203(2)(a) and (b), Florida Statutes, to seek dismissal of the medical malpractice claim against him.

Practical Implications

• Presuit waiver in a Florida medical malpractice case is defendant-specific and will not automatically be imputed to co-defendants.
• Healthcare providers may independently enforce dismissal rights under § 766.203, Florida Statutes, even where a related entity has waived presuit protections.
• Medical liability insurers should evaluate Chapter 766 presuit compliance separately for each insured defendant when assessing dismissal strategy.

Wells v. North Florida OBGYN
Fla. 5th DCA (2026) – Medical Malpractice / Alleged Wrongful Death

Holding
In this Florida medical malpractice and alleged wrongful death action, the Fifth District Court of Appeal held that a gynecologist and his practice group could not be made to defend claims that were not identified in the plaintiff’s presuit expert affidavit in a case involving the alleged failure to treat a uterine tumor.

Discussion
A medical malpractice claimant submitted a verified expert affidavit during the Chapter 766 presuit process to corroborate an alleged deviation from the clinical standard of care. However, the affidavit did not address additional claims later raised for the first time in the lawsuit.

Specifically, the complaint included allegations of lack of informed consent against each defendant and direct negligence by office staff members. There was no evidence that these additional claims were mentioned by the claimant’s presuit expert before suit was filed. Because compliance with Florida’s presuit affidavit requirements is a statutory condition precedent to maintaining a medical malpractice action, the prerequisite for asserting those claims was missing.

Practical Implications

• In Florida medical malpractice litigation, each theory of liability must be supported by a compliant presuit expert affidavit under Chapter 766.
• Claims raised for the first time in the complaint are subject to dismissal if not vetted during presuit.
• Medical liability insurers should confirm that all alleged theories were properly addressed in presuit when evaluating exposure.

Williams v. Leesburg Regional Medical Center
Fla. 5th DCA (2026) – Medical Malpractice / Pediatric Wrongful Death

Holding
In this Florida medical malpractice and pediatric wrongful death action, the Fifth District Court of Appeal held that causation opinions offered by the plaintiff’s experts were properly excluded under Daubert. The experts did not express a definitive opinion that earlier administration of antibiotics to treat a pulmonary infection would have resulted in the patient’s survival.

Discussion
The plaintiff alleged that delayed administration of antibiotics led to the death of a hospitalized pediatric patient. On appeal, the issue was whether the trial court properly exercised its gatekeeping function under Daubert in excluding the opinions of the plaintiff’s causation experts.

Although the experts testified to a “lost chance” of survival, none stated definitively that the patient would have survived had antibiotics been administered on the date of the subject medical encounter. The trial court determined that the testimony did not meet the reliability threshold required under Daubert, as the testing, peer review, potential error rate, and general acceptance components were lacking.

The Fifth DCA concluded that the trial court did not abuse its discretion in excluding the testimony, and further noted that the opinions fell short of establishing medical malpractice causation under Gooding v. University Hospital.

Practical Implications

• In Florida medical malpractice cases, “lost chance” testimony alone is insufficient to establish causation.
• Expert opinions must satisfy both Daubert reliability standards and Florida’s causation requirement under Gooding.
• Medical liability insurers should closely evaluate whether causation experts offer definitive survival opinions before assessing exposure.

Hermoso v. New Life Plastic Surgery Corp.
Fla. 3d DCA (2025) – Medical Malpractice

Holding
In this Florida medical malpractice action, the Third District Court of Appeal held that dismissal was proper where the plaintiff’s presuit claim was predicated on the erroneous assertion that the defendant plastic surgeon placed breast implants above the chest wall muscles, when the plaintiff later admitted the implants had been placed under the chest wall muscles. Because the presuit allegations were directly contradicted prior to the evidentiary hearing, dismissal under Chapter 766, Florida Statutes, was warranted.

Discussion
The plaintiff sued her plastic surgeon and practice group alleging improper implant placement that allegedly impeded circulation. During her deposition—before the defendants’ motions to dismiss were decided—she admitted that her breast implants were placed under the chest wall musculature, contrary to the assertions made in her notice of intent and by her presuit expert, who claimed placement “above the muscle” constituted a deviation from the standard of care.

The deposition testimony demonstrated that no reasonable presuit investigation had been conducted. The court concluded that the claim was unsupported and that dismissal was required pursuant to sections 766.203(2)(a)-(b) and 766.206(2), Florida Statutes. The plaintiff subsequently underwent implant removal surgery after filing suit, which confirmed that the implants had originally been placed under the muscle, rendering a court-ordered IME unnecessary.

The Third DCA held that the verified expert opinion failed to satisfy the statutory presuit investigation requirements and that the legislative purpose of Chapter 766 was frustrated. Because the statute of limitations had run, dismissal of the second amended complaint with prejudice was proper.

Practical Implications

• Florida medical malpractice claims must be supported by a reasonable presuit investigation under Chapter 766.
• Claims contradicted by a plaintiff’s own testimony are subject to dismissal under §§ 766.203 and 766.206.