One detail missed, several lives affected. Despite the harm that can result from medical misconduct, it is not as easy for prospective plaintiffs to file a medical negligence claim. First, a claimant must complete an adequate pre-suit investigation prior to filing the complaint in Court. The statutory safeguard confirms the prospective plaintiff’s claim is supported by reasonable grounds. The required investigation includes: (1) a notice of intent to initiate litigation; and (2) a corroborating affidavit written by a medical expert in a similar field as the defendant health care provider.
In a recent case, the Fourth District Court of Appeals opined that a proper corroborating affidavit is a “low bar.”[i]As such, the penalties for failing to conduct an adequate pre-suit investigation have severe consequences commanded by the statute. The court shall dismiss the claim if the notice of intent to initiate litigation is inadequate.[ii] Additionally, the person who mailed such notice, either the claimant or the claimant’s attorney, would be personally liable for all attorneys’ fees and costs incurred during the investigation and evaluation of the claim. A motion to dismiss would raise the issue of whether the corroborating affidavit is sufficient for a legitimate claim of medical negligence.[iii]
In Potapric v. Barnes, the Court dismissed a medical negligence claim for failing to comply with the statutory pre-suit requirements.[iv] Following alleged post-surgical complications, Barnes sued Dr. Potparic for medical negligence. Barnes’ expert affidavit stated Potparic violated the medical standard of care by performing the surgery while not properly registered with the Florida Department of Health. The affidavit mentioned a breach also where the nurse administered anesthesia while the supervising doctor was not properly registered. Discovery later revealed that Potparic was properly registered at the time of the surgery, and Barnes sought leave to file a second amended complaint. Barnes now alleged she was harmed because the nurse who administered the anesthesia was not properly registered with the Department of Health. However, Barnes did not submit a new affidavit with the second amended complaint. The affidavit did not mention the nurse’s own registration or describe any deficient act or how such act caused Barnes to have any injury.
The court looked at whether the notice of intent to initiate litigation and the corroborating expert opinion, taken together sufficiently indicated that Dr. Potparic allegedly deviated from the standard of care, and if Barnes provided adequate information for the defendants to evaluate the merits of the claim.[v] The Court agreed with Potparic that the affidavit does not corroborate reasonable grounds to support the claim of medical negligence set out in the second amended complaint. The only theory of negligence described in the claimant’s expert’s affidavit proved unfounded and was abandoned. The affidavit lent no support to the claim alleged in Barnes’s second amended complaint. Because Barnes failed to comply with the procedural requirements, the Court quashed the order denying dismissal with directions to grant the dismissal as commanded by statute. Along with dismissal, either Barnes or her attorney will be personally liable for the attorney’s fees and costs associated with investigating this claim.[vi]
While the District Court opinion did not reach the issue of consequences for failing to conduct a reasonable investigation, the statute commands liability for attorney’s fees and costs and disciplinary review with the Florida Bar.[vii]
[i] Potparic v. Barnes, No. 4D2025-1701, 2025 Fla. App. LEXIS 7301, at *6 (Fla. Dist. Ct. App. Sep. 24, 2025).
[ii] Fla. Stat. § 766.206(2) (2025).
[iii] Id.
[iv] Potparic v. Barnes, No. 4D2025-1701, 2025 Fla. App. LEXIS 7301, at *6 (Fla. Dist. Ct. App. Sep. 24, 2025).
[v] Id. at *5.
[vi] See Fla. Stat. §766.206(2)(2025).
[vii] Fla. Stat. § 766.206 (4).