Florida Malpractice Cap: Status, Deadlines, and Pre-Suit Steps

Florida no longer enforces a medical malpractice cap on noneconomic damages. The Florida Supreme Court struck down the statutory limits in two decisions, one covering wrongful death claims in 2014 and the other covering personal injury claims in 2017. The cap statute is still printed in the Florida code, but courts will not apply it, and there is currently no ceiling on pain-and-suffering awards in Florida malpractice cases.

What Florida Caps and What It Doesn’t

Florida malpractice damages split into two categories. Economic damages cover measurable financial losses: hospital bills, surgeries, prescriptions, rehabilitation, lost wages, reduced earning capacity, and long-term care. Florida has never capped economic damages, and it still doesn’t. If negligence costs you three million dollars in future care, you can recover three million dollars.

Noneconomic damages cover the losses without a receipt: physical pain, emotional anguish, scarring, loss of enjoyment of life, and loss of companionship. These are the awards the 2003 legislature tried to cap, and these are the caps the Florida Supreme Court invalidated. Today, jurors set noneconomic awards based on the facts of the case, with no statutory ceiling.

How the Caps Were Struck Down

The 2003 Medical Malpractice Reform Act (Senate Bill 2-D) added Section 766.118 to the Florida Statutes.¹ It set tiered limits on noneconomic damages depending on the defendant and the severity of the harm, and it used aggregate caps that multiple claimants had to share.

That aggregation is what sank the law. In March 2014, in Estate of McCall v. United States, the Florida Supreme Court held that the cap on noneconomic damages in wrongful death cases violated the Equal Protection Clause of the Florida Constitution. Michelle McCall died from complications during childbirth at a military hospital, and because she left behind multiple survivors, the aggregate cap shrank each family member’s share. The court found no rational basis for a rule that gave a sole survivor the full cap and a member of a large family only a fraction of the same amount for the same loss. It also concluded that the evidence no longer supported the legislature’s stated justification of a malpractice insurance crisis.²

Three years later, on June 8, 2017, the court finished the job. In North Broward Hospital District v. Kalitan, it applied the same equal-protection reasoning to personal injury malpractice cases and affirmed the Fourth District’s decision striking those caps down.³ Between McCall and Kalitan, both halves of Section 766.118 became unenforceable.

The legislature has not repealed the statute, so it still appears in the Florida code.⁴ In practice it is a dead letter. Courts will not enforce it, and no later legislation has successfully reinstated malpractice-specific caps.

The Old Cap Structure, If Your Case Predates the Rulings

If you are researching an older claim, the original statute drew a line between two defendant types:

Practitioner defendants (doctors, dentists, chiropractors, and similar licensed professionals) were capped at $500,000 per claimant. In death, permanent vegetative state, or qualifying catastrophic injury cases, the aggregate cap rose to $1 million across all claimants.⁴
Non-practitioner defendants (hospitals, clinics, other entities) had a base cap of $750,000 per claimant, rising to $1.5 million in the same aggravated categories.⁴

For any case governed by current law, those numbers no longer apply.

Pre-Suit Steps You Have to Complete Before Filing

You cannot walk into a Florida courthouse and file a malpractice complaint. The state requires a mandatory pre-suit process, and skipping any part of it can end your case before it begins.

First, you have to investigate the claim and obtain a verified written opinion from a qualified medical expert confirming that reasonable grounds exist to believe negligence occurred.⁵ The opinion doesn’t have to catalog every act of negligence, but a qualified expert has to have reviewed the facts and endorsed the claim in writing.

Second, you have to send a formal notice of intent to initiate litigation to every prospective defendant by certified mail or another verifiable method. The notice must include the medical records your expert relied on, a list of healthcare providers who treated you for the injury, and providers who treated you in the two years before the alleged negligence.⁶

Once you mail the notice, a 90-day investigation period begins. During that window the defendant or their insurer must reject the claim, make a settlement offer, or offer to arbitrate with liability admitted. Silence for the full 90 days counts as a rejection, and you can then file suit.⁶ The statute of limitations is tolled during those 90 days, so the waiting period doesn’t consume your filing deadline.

How Long You Have to File

You get two years from the date you discovered, or should have discovered, the injury. The outer boundary is four years from the incident itself, no matter when you found out, with one exception: for minors, the four-year cap does not apply to actions brought before the child’s eighth birthday.⁷

If the provider committed fraud, concealment, or intentional misrepresentation that kept you from discovering the injury, the two-year clock runs from actual discovery, with an absolute outer limit of seven years from the incident (again with the exception for minors under eight).⁷

Because the pre-suit investigation, expert review, and 90-day notice all have to happen before filing, a two-year clock runs out faster than most people expect. Starting early is not a preference; it’s a practical necessity.

What Your Attorney Can Charge

Florida voters approved a constitutional amendment in 2004 (Article I, Section 26) that limits contingency fees in medical malpractice cases. You are entitled to keep at least 70 percent of the first $250,000 in damages recovered and at least 90 percent of anything above that, after reasonable costs are deducted.⁸ The percentages apply whether the recovery comes through settlement or verdict, and regardless of how many defendants are involved. That leaves the attorney with roughly 30 percent of the first $250,000 and 10 percent of anything beyond, notably lower than the typical one-third contingency in other personal injury work.

Could Caps Come Back

The policy fight is not over. The Florida legislature passed HB 837 in 2023, a broad tort reform package, but that law addressed other areas of civil litigation and did not reinstate malpractice damage caps.⁹ Any future attempt to cap noneconomic damages would have to survive the same equal-protection scrutiny that killed the last one, and the McCall court specifically found that the legislature’s insurance-crisis rationale was no longer supported by the evidence.

Research on the underlying premium question continues. A 2025 study found that repealing noneconomic caps increases malpractice insurance premiums, and by a larger amount than premiums fall when caps are first enacted, with the effect most pronounced after state supreme court decisions that invalidate caps statewide.¹⁰ Whether that translates into legislative action, and whether any new cap could be drafted to survive constitutional review, remain open.

For now, if you are pursuing a Florida malpractice claim, plan around the current reality: full economic damages, uncapped noneconomic damages, strict pre-suit procedure, a tight limitations window, and a constitutional limit on what your lawyer can charge.

1
Florida Office of Insurance Regulation. Medical Malpractice Rates in Florida
2
Justia. Estate of McCall v. United States
3
Justia. North Broward Hospital District v. Kalitan
4
Online Sunshine. Florida Statutes 766.118 – Determination of Noneconomic Damages
5
Florida Senate. Florida Statutes 766.203 – Presuit Investigation of Medical Negligence Claims
6
Online Sunshine. Florida Statutes 766.106 – Notice Before Filing Action for Medical Negligence
7
Online Sunshine. Florida Statutes 95.11 – Limitations Other Than for the Recovery of Real Property
8
Florida State University College of Law. In Re: Amendment to the Rules Regulating The Florida Bar – Rule 4-1.5(f)(4)(B)
9
Florida Senate. House Bill 837 (2023)
10
PubMed Central. The Repeal of Noneconomic Damage Caps and Medical Malpractice Insurance Premiums