How to File a Medical Malpractice Claim
A medical malpractice claim has more steps before a lawsuit than almost any other injury claim. Most states require a formal notice to the provider, and some require a medical expert to support the claim before it can even be filed. The deadlines are short and they start from when the injury happened or was discovered. This guide walks through the process in California and Florida, step by step.
What happens when you reach out
- You tell us what happenedSend the short form or call. It takes about a minute, and you share only what you are comfortable with.
- A claim specialist reviews itWe look at your deadlines, the insurer or agency involved, and the records your claim will need.
- We call you backUsually the same day, to explain your options. There is no cost and no obligation.
Prefer to talk now? Call (833) 333-0905 or text 954-933-5065.
Find out if you have a claim
Tell us what happened during your care. A claim specialist reviews it and calls you back, usually the same day.
Legal Lawsuit is not a law firm. Contacting us does not create an attorney-client relationship.
On this page
What malpractice is, and is not
Malpractice is care that fell below the accepted standard for that kind of provider and caused harm. A bad outcome alone is not malpractice; some treatments fail even when done correctly. Common examples include missed or delayed diagnoses, surgical errors, medication errors, birth injuries, and failures to monitor or follow up on test results.
Because the question is medical, nearly every malpractice claim needs a qualified medical expert to explain what the standard of care was and how it was breached. That is also why these claims take longer and cost more to investigate than other injury claims.
The process, step by step
Get your complete records
Request the full chart from every provider and facility, including nursing notes, imaging and test results. Federal privacy law gives you a right to your records.
Write a timeline
Dates of visits, what you were told, symptoms, and when you first suspected something went wrong. The discovery date can decide the deadline.
Have a medical review
A qualified physician reviews the records to decide whether the standard of care was breached and whether that caused the harm.
Serve the required notice
Florida and California both require formal notice to the provider before a lawsuit, with set waiting periods.
Negotiate, arbitrate or file
Many claims resolve during or after the pre-suit period. If not, the lawsuit must be filed before the deadline.
Florida's pre-suit process
| Step | Rule | Source |
|---|---|---|
| Expert support | Before sending notice, the claimant must investigate and corroborate the claim with a verified written medical expert opinion, sent with the notice. | Fla. Stat. §766.203(2) |
| Notice of intent | Each prospective defendant must be notified by a verifiable method, such as certified mail with return receipt, tracked mail, a commercial carrier or a process server. | §766.106(2) |
| 90-day investigation | No suit may be filed for 90 days after notice. The statute of limitations is tolled during that period. | §766.106(3)-(4) |
| The response | By the end of the 90 days, the provider or insurer must reject the claim, make a settlement offer, or offer arbitration with liability admitted. No response is treated as a rejection. | §766.106(3) |
| Deadline | 2 years from the incident or its discovery, and no more than 4 years from the incident in most cases (up to 7 with fraud or concealment). | Fla. Stat. §95.11(5)(c) |
California's rules
| Rule | What it says | Source |
|---|---|---|
| 90-day notice | At least 90 days' notice of intent to sue is required. No special form is needed, but the notice must state the legal basis of the claim and the injuries. Notice served in the last 90 days before the deadline extends the deadline by 90 days. | Cal. Code Civ. Proc. §364 |
| Deadline | 3 years after the injury or 1 year after discovering it, whichever is first, with limited exceptions such as fraud, concealment or a foreign object left in the body. | Cal. Code Civ. Proc. §340.5 |
| Limits on non-economic damages | For cases filed on or after January 1, 2023, limits started at $350,000 (injury) and $500,000 (death) and rise each January by $40,000 and $50,000 for 10 years, to $750,000 and $1,000,000. | Cal. Civ. Code §3333.2 |
Claims against public hospitals can add government claim rules on top of these. For sexual misconduct by a provider, which is treated differently from a medical mistake, see sexual abuse by a doctor or medical provider.
Common questions
How do I know if it was malpractice or just a bad result?
Only a review of the records by a qualified medical expert can answer that. Signs worth a review include a diagnosis that came much later than it should have, a procedure on the wrong site, or a test result that nobody followed up.
Can I file a complaint with the medical board instead?
You can do both. A board complaint can lead to discipline but does not pay compensation, and it does not stop the claim deadline.
What if a family member died?
A wrongful death claim may be available, with its own rules on who can file. The malpractice notice and deadline rules still apply.
Does the claim review cost anything?
No. It is free. See also our personal injury claim guide.
Related claim guides
More step-by-step guides in this section:
Something went wrong in your care?
Call (833) 333-0905, or send the short form. A claim specialist will check your deadline and what a review would need.
Legal Lawsuit is an information and claim-review service, not a law firm, and does not provide legal or medical advice. Contacting us does not create an attorney-client relationship. Malpractice rules vary by state and change over time; confirm what applies to you with a licensed attorney. Legal Lawsuit and TortAdvisor are under common ownership.
