By Jeffrey T. Donner, Esq.

August 10, 2026

A patient who believes that a physician committed malpractice might reasonably assume that the central question in a lawsuit will be whether the physician was negligent. In Florida, however, that assumption can be wrong. Before a jury ever considers whether the medical care fell below the applicable standard of care, the parties may spend substantial time and money litigating a different set of questions concerning presuit investigation, expert review, statutory notice, and the precise scope of the medical opinion obtained before suit. In some cases, those procedural questions can determine whether particular claims will ever be heard on the merits.

Florida’s Fifth District Court of Appeal confronted several of those issues in Wells v. Quintero, 429 So. 3d 576 (Fla. 5th DCA 2026). The decision is important because it illustrates how central the presuit expert opinion has become under Chapter 766, Florida Statutes. The plaintiff in Wells had investigated a serious medical-malpractice claim, obtained a medical expert opinion, served a notice of intent, and filed suit, yet several causes of action were still subject to dismissal because the presuit expert affidavit did not corroborate the particular theories later asserted in those counts.

As a matter of statutory interpretation, the Fifth District’s reasoning is understandable. Chapter 766 does not merely require a claimant to tell a healthcare provider that a lawsuit is coming. It requires expert corroboration of reasonable grounds to pursue a medical-negligence claim. But Wells also exposes a larger problem that receives far less attention in appellate opinions: obtaining access to the physicians necessary to navigate the presuit process can itself be extraordinarily difficult and expensive, and that practical reality can affect who is able to get through the courthouse door.

The Lawsuit Was About a Death. The Appeal Was About the Scope of an Affidavit.

The underlying allegations in Wells were serious. Rodrigo Quintero brought a wrongful-death medical-malpractice action arising from the death of his wife, Iris Quintero. He alleged that obstetrician and gynecologist Dr. David Wells negligently treated a uterine tumor, and before filing suit he served a notice of intent to initiate medical-malpractice litigation on Dr. Wells and his employer, North Florida OBGYN, LLC.

A medical expert supplied the presuit affidavit. According to the Fifth District, the expert opined that Dr. Wells failed to timely diagnose Iris, thereby delaying treatment, and negligently performed a morcellation procedure that resulted in progression and metastasis of her leiomyosarcoma. The opinion therefore addressed alleged clinical negligence by Dr. Wells, and it provided the type of expert corroboration Chapter 766 requires for that theory.

The case later expanded. By the third amended complaint, the plaintiff also alleged direct negligence against North Florida OBGYN and lack of informed consent against both Dr. Wells and the medical practice. The problem was that the presuit expert opinion did not address independent negligence by North Florida OBGYN or its other personnel, and it did not express an opinion supporting an informed-consent theory.

The defendants moved to dismiss those counts, and the trial court denied the motion. The Fifth District ultimately concluded that the challenged claims had not satisfied Chapter 766’s presuit requirements and directed that they be dismissed. The result demonstrates a fundamental feature of Florida medical-malpractice law: one expert opinion supporting one malpractice theory does not necessarily authorize litigation of every other malpractice theory arising from the same medical treatment.

Chapter 766 Requires More Than Notice

It is common to refer casually to Chapter 766 as Florida’s medical-malpractice “presuit notice” statute, but that shorthand can obscure what the statute actually requires. If simple notice were enough, the defendants in Wells seemingly had it. They knew that the plaintiff believed medical negligence had caused Iris Quintero’s death, they received a notice of intent, and a medical expert had reviewed the case and supported a malpractice claim. Litigation was plainly contemplated.

Chapter 766 requires more than awareness of a dispute. Section 766.104 requires a reasonable investigation before a medical-negligence action is filed, and section 766.203 requires an investigation into whether there are reasonable grounds to believe that a named defendant was negligent and that the negligence caused injury. Those reasonable grounds must then be corroborated through a verified written medical expert opinion.

The statutory definition of an “investigation” is particularly important because, as the Fifth District noted, the statute contemplates review of the case “against each and every potential defendant,” consultation with a medical expert, and acquisition of the required written opinion. The expert opinion therefore serves a gatekeeping function. Its purpose is not simply to tell the defendant that litigation is likely, but to demonstrate that a medical professional has examined the proposed claim and concluded that reasonable grounds exist to pursue it.

The Fifth District explained that the notice and corroborating opinion must sufficiently identify the alleged departure from the standard of care and provide enough information for the defendant to evaluate the claim. The relevant question is therefore not merely whether the healthcare provider knew the patient intended to sue. It is whether the particular claim eventually placed into litigation went through the investigation and expert-corroboration process that Chapter 766 requires.

That Sounds Reasonable in Theory. The Real World Is More Complicated.

There is an obvious policy rationale behind requiring some professional review before a medical-malpractice case is filed. Medicine is complex, a bad result does not establish malpractice, and courts should not encourage lawsuits based merely upon a patient’s belief that a physician must have done something wrong. The difficulty is that the statutory theory assumes a claimant with a potentially legitimate claim has reasonable access to a physician willing to provide the particular type of medical opinion the statute requires.

That assumption deserves considerably more scrutiny. In my own experience, the difficult part is not necessarily finding physicians willing to discuss the patient’s medical condition. Practicing physicians may review imaging, medical records, surgical results, or subsequent treatment and express significant concerns about what occurred. The problem is persuading a qualified physician to move from giving a medical opinion in the course of treatment or consultation to signing a verified opinion that can be used to initiate malpractice litigation against another physician.

Those are very different things. A physician who is perfectly comfortable telling a patient during a consultation that a prior procedure appears problematic may have no interest whatsoever in signing an affidavit accusing another physician of malpractice. Doing so means entering the legal system and potentially agreeing to communications with lawyers, additional record review, deposition testimony, attacks on qualifications or conclusions, and perhaps trial testimony. Many practicing physicians simply do not want that role, regardless of what they may think about the underlying treatment.

The claimant is then pushed toward a specialized market of physicians willing to perform litigation-related reviews. Lawyers handling medical-malpractice cases may turn to brokers, referral services, or other intermediaries to locate physicians willing to participate in that process. My own experience with that market was revealing: I encountered an intermediary who wanted approximately $3,500 simply to provide me with the name of a physician whom I could then contact about potentially performing the necessary medical review.

That distinction is critical. The $3,500 was not the physician’s fee, it was not payment for review of the records, and it was not payment for a medical opinion, affidavit, deposition, or trial testimony. It was approximately $3,500 merely for the name of a doctor to call. Whether that physician would agree to review the matter, what the physician would charge, what additional records might be required, and whether the physician would ultimately agree that malpractice occurred were all separate questions.

That experience materially changed the way I view Florida’s presuit system. The problem is not simply that medical experts are expensive. The problem is that, in some circumstances, substantial money may have to be spent before the claimant even reaches the physician who might be willing to perform the review the statute requires.

The Presuit Requirement Can Become an Economic Filter

A statute designed to screen claims for medical merit should ideally distinguish between claims that have reasonable professional support and claims that do not. Once access to the people who can supply that professional support is itself controlled by an expensive specialized market, however, another variable enters the equation: money. The claimant’s ability to finance the process begins to matter before the medical merits have been tested in court.

Consider the practical problem. A claimant may have medical records that raise serious questions, imaging that appears problematic, and subsequent physicians who have expressed concern about what occurred. An experienced lawyer may believe there is enough information to warrant further investigation, but none of that necessarily opens the courthouse door. The claimant still needs a physician willing to perform the particular review contemplated by Chapter 766 and, if the physician agrees with the claim, provide the required verified opinion.

If an intermediary demands thousands of dollars merely to identify a potential reviewer, that expense arises before the claimant has received any expert opinion at all. For an individual claimant or solo practitioner, being asked to spend approximately $3,500 simply to obtain the identity of a physician to contact—without knowing whether the physician will take the case or support the claim—is a meaningful economic barrier. Even after paying that amount, the claimant has still not satisfied Chapter 766, because the actual physician’s review remains to be performed and paid for.

That economic structure matters because medical-malpractice litigation is expensive even after the presuit requirements have been satisfied. Records must be obtained and analyzed, experts must be retained, depositions must be taken, additional specialties may become necessary, and cases may continue for years. A statutory regime that imposes a substantial financial burden before ordinary litigation even begins inevitably affects which claims can realistically be pursued.

The Advantage of the Repeat Player

Large plaintiffs’ firms that routinely handle medical-malpractice cases operate from a very different position. They have established expert networks, they know which physicians perform malpractice reviews, they have relationships with referral sources, and they possess institutional knowledge developed over large numbers of cases. They also have staff dedicated to acquiring and organizing medical records and enough case volume to develop direct relationships with experts rather than entering the market as a first-time purchaser searching for someone willing to review a particular specialty.

They also have capital. That is not a criticism; it is simply part of the economics of sophisticated contingency-fee litigation. A large malpractice practice can spread the risk of unsuccessful investigations across a portfolio of cases and absorb expenses that would present a much more difficult decision for an individual claimant or a solo practitioner.

For a smaller firm, spending thousands of dollars merely to obtain access to the name of a potential reviewing physician presents a different calculation. The lawyer has not yet obtained an expert opinion, does not know whether the potential expert will support the claim, does not know what that expert will charge, and may ultimately learn that the case cannot proceed. The system does not legally prohibit smaller firms from handling medical-malpractice cases, but it creates a structural advantage for repeat players with capital, expert relationships, and established infrastructure.

That raises a legitimate policy concern. A screening mechanism intended to distinguish medically meritorious claims from unsupported ones should not, at least in theory, depend heavily upon whether the claimant or counsel has access to a well-developed expert network. Yet in practice, institutional access can become an important part of the equation.

The Morgan & Morgan Problem

To put the point more directly, Florida has created a system that is much easier for a firm built like Morgan & Morgan to navigate than for an individual claimant or an ordinary small litigation practice. That is not an attack on Morgan & Morgan. Large plaintiffs’ firms have deliberately built the infrastructure necessary to litigate expensive contingent-fee cases, and their ability to locate experts, finance litigation, and absorb unsuccessful investigations is part of their business model.

The policy question is why access to that type of infrastructure should play such a significant role in determining whether a Florida citizen can get a medical-negligence claim into court. A large malpractice firm may already know several physicians in the relevant specialty who perform presuit reviews. A solo lawyer confronting the system for the first time may instead encounter a broker demanding approximately $3,500 merely to disclose the name of one potential physician.

That difference has nothing to do with whether the underlying medical treatment was negligent. It is a difference in institutional access. The issue is therefore not whether Florida should permit patients to sue physicians based simply upon dissatisfaction with an outcome; it should not. The question is whether Florida has created a system in which access to specialized litigation-expert networks can determine whether an otherwise colorable malpractice claim can even be professionally investigated in the manner the statute demands.

That problem is difficult to see in appellate decisions because claims that never make it through presuit never generate appellate decisions. Reported cases show us the claims that somehow got through the gate. They do not show us the potentially legitimate claims that were abandoned outside it because the claimant or lawyer could not justify the expense required simply to enter the expert market.

The Difference Between a Treating Doctor and a Litigation Expert Matters

Patients understandably believe that if another physician thinks something went seriously wrong, obtaining the necessary malpractice opinion should be relatively straightforward. Lawyers who have dealt with the process know otherwise. There is an important difference between a practicing physician giving a clinical opinion to a patient and that same physician becoming a participant in litigation.

A physician may examine a patient, review imaging, and express genuine concern about the result of an earlier procedure while simultaneously refusing to sign anything that could be used against the prior physician in court. That reluctance may have nothing whatsoever to do with the merits of the patient’s claim. The physician may dislike litigation, may not want to testify against another doctor, may not have time to be deposed, may have an employment arrangement that discourages expert work, or may simply have a personal policy against participating in malpractice cases.

Whatever the reason, the consequence for the claimant is the same. A medical opinion that may be useful in determining future treatment is not necessarily an opinion that satisfies Chapter 766. The claimant therefore may have to locate another physician who has never treated the patient, pay that physician to review the records, and hope that the physician is both willing and qualified to provide the formal corroborating opinion required before suit.

There is nothing inherently improper about physicians performing expert-witness work, and complex litigation depends upon qualified experts. Courts could not fairly adjudicate many medical issues without them. But there is something worth examining about a statutory system that can make access to a specialized litigation-expert marketplace a practical prerequisite to accessing the judicial system itself.

And Wells Makes the Ticket Claim-Specific

This is where Wells becomes particularly significant. It would be one thing if obtaining a qualified physician’s presuit opinion generally cleared the way for litigation arising from the medical episode under investigation. Wells demonstrates that the analysis may be much narrower.

The expert affidavit in Wells supported allegations concerning Dr. Wells’s clinical treatment, but it did not support independent negligence claims against North Florida OBGYN. The Fifth District therefore concluded that the practice had not received the presuit process required for that separate negligence theory. The informed-consent allegations presented the same problem because the affidavit had not identified a lack-of-informed-consent deviation from the standard of care.

The practical lesson is significant. It is not enough simply to locate “a malpractice expert.” Counsel must consider which theories that physician is reviewing, which defendants those opinions implicate, and whether those opinions correspond with the claims that may eventually appear in the complaint. The expert opinion becomes not merely the ticket to the courthouse, but potentially a ticket limited to particular claims against particular defendants.

That makes the difficulty and expense of obtaining access to qualified experts even more consequential. A claimant may spend substantial resources obtaining one presuit review only to discover later that an additional theory requires separate consideration. The system therefore places considerable pressure on counsel to anticipate potential claims at a point when ordinary civil discovery has not yet begun.

Medical Malpractice Requires Investigation Before Ordinary Discovery

That sequencing creates another structural problem. In conventional civil litigation, lawyers often possess enough evidence to file a good-faith complaint without possessing every relevant fact, which is one reason discovery exists. Documents can be requested, witnesses can be deposed, corporate representatives can be examined, internal policies can be obtained, and experts can refine their opinions after receiving information that was unavailable before litigation began.

Medical-malpractice plaintiffs must perform a substantial amount of substantive investigation before many of those tools become available. A patient may know enough before suit to suspect negligent treatment by an individual physician but may not know whether a medical practice or institution bears independent responsibility. Those facts may emerge only from policies, staffing records, internal communications, protocols, or testimony obtained during discovery.

Yet Wells reminds lawyers that if subsequently discovered facts support a materially different medical-negligence claim, the original expert affidavit may not provide the statutory foundation necessary to litigate it. There is therefore an inherent tension in the system: civil discovery exists because litigants ordinarily cannot know everything before filing suit, while Chapter 766 nevertheless requires medical-malpractice claimants to know enough before filing suit to identify and professionally corroborate the claims they intend to pursue.

That makes access to a competent and sufficiently thorough presuit medical review extraordinarily important. It also makes the cost and availability of that review more than a peripheral issue. Those practical considerations directly affect the ability to comply with the statutory scheme.

This Is Why Presuit Cannot Be Treated as a Formality

The immediate lesson for plaintiffs’ lawyers is that Chapter 766 presuit cannot be treated as a checklist. Obtaining “an expert affidavit” is not enough. Counsel must identify reasonably foreseeable defendants, distinguish direct negligence from vicarious liability, identify potentially distinct professional-negligence theories, determine what the reviewing expert has actually considered, and ensure that the written opinion provides the necessary corroboration for the claims likely to be asserted.

No responsible lawyer should ask a physician to manufacture an opinion merely to preserve a cause of action. If the medical records do not support a theory, the physician should not endorse it. At the same time, lawyers must understand the danger of an unnecessarily narrow presuit review, because a claimant could spend substantial money locating an appropriate physician, pay that physician to conduct a review, comply with presuit, commence litigation, discover additional information, amend the complaint, and then learn that an important theory is subject to dismissal because it was not encompassed within the original expert’s opinion.

That is precisely why the practical accessibility of the expert-review process matters. The claimant is not merely searching for medical advice. The claimant is trying to acquire the statutory foundation necessary to invoke the civil justice system, and the process of obtaining that foundation may itself be expensive and uncertain.

Defense Counsel Should Conduct the Analysis in Reverse

For defense lawyers, Wells creates an obvious checklist of a different kind. When a complaint arrives, particularly an amended complaint, counsel should compare the pleading directly against the presuit notice and expert affidavit rather than stopping after confirming that the client received some form of notice of intent.

The appropriate question is what the expert actually corroborated. If the expert discussed only a physician’s performance of a procedure, has the complaint added lack of informed consent? If the affidavit addressed only the physician, does the plaintiff now assert independent negligence against a practice, hospital, nursing staff, or another provider? If the presuit materials focused on diagnosis, has the complaint added a distinct claim concerning postoperative care or another alleged departure from the standard of care?

Not every variation creates a Chapter 766 defect, and Wells does not require word-for-word identity between the presuit affidavit and the complaint. The case does, however, establish that there is a meaningful distinction between factual development of an existing claim and the introduction of a materially different professional-negligence theory. Defense counsel would be remiss not to examine that distinction.

The Defendant’s Right Is a Right to the Process Itself

The appellate procedure in Wells reinforces just how consequential these requirements are. The trial court denied the defendants’ motion to dismiss, and ordinarily the denial of a motion to dismiss is not immediately appealable. The defendants initially invoked Florida Rule of Appellate Procedure 9.130(a)(3)(H), which permits interlocutory review of certain orders involving the qualifications of a corroborating expert, but the Fifth District concluded that provision did not apply because the issue was not whether the expert was qualified. The defendants argued that no corroborating opinion existed at all for the challenged claims.

The court nevertheless exercised certiorari jurisdiction. Florida appellate courts recognize that certain Chapter 766 violations cannot meaningfully be corrected after final judgment because the defendant’s statutory right includes the right to undergo the presuit process before being subjected to ordinary litigation. Once the defendant has endured discovery, expert litigation, trial preparation, and perhaps trial, a later appellate ruling cannot restore the presuit process that was supposed to occur beforehand.

That doctrine makes Chapter 766 unusually powerful. Noncompliance is not simply another defense to be litigated at trial; it can prevent a claim from reaching trial in the first place. For that reason, the scope of the presuit investigation and expert opinion can become outcome-determinative before the underlying negligence allegations are ever tested.

The Result Is Litigation About Whether Litigation May Proceed

There is an obvious irony in a system designed in part to avoid unnecessary litigation but capable of generating substantial litigation over compliance with the screening mechanism itself. Wells involved multiple complaints, a motion to dismiss, a trial-court ruling, an appellate proceeding, a jurisdictional analysis concerning nonfinal review, certiorari analysis, statutory interpretation, and ultimately an appellate decision determining which claims could proceed.

None of that answered the most obvious question a layperson would associate with the lawsuit: whether the medical treatment was negligent. The appellate decision instead determined which allegations were procedurally entitled to reach that question. This is not a criticism of the Fifth District, which was applying the statutory regime enacted by the Legislature and the precedents governing that regime, but it is a reason to examine whether the system as a whole has become more complicated than necessary to accomplish its stated objectives.

When a regime intended to screen malpractice cases begins generating substantial litigation over whether a particular expert affidavit encompassed a particular count in an amended complaint, it is fair to ask whether procedure has begun to overshadow substance. The answer may vary from case to case, but Wells demonstrates that the concern is not theoretical.

Substantial Compliance Has Limits

Florida courts have recognized that Chapter 766 should not become a minefield of meaningless technicalities, and concepts such as substantial compliance and statutory purpose remain important. Wells, however, demonstrates the limits of those principles because the Fifth District did not treat the challenged claims as merely suffering from awkward drafting or some minor technical defect. The court considered the absence of any corroborating opinion concerning the particular claims to be a procedural failure.

That distinction is understandable. There is a meaningful difference between imperfect compliance with a requirement and failure to satisfy the requirement at all. Yet recognizing that distinction does not eliminate the broader policy problem; it underscores it. If the expert opinion is truly an indispensable gateway to litigation, then the cost, accessibility, and real-world availability of physicians willing to provide that opinion become matters of access to justice.

If a claimant may first encounter an intermediary demanding thousands of dollars merely to reveal the identity of a potential expert, that is not a peripheral detail about litigation expenses. It is part of how the statutory system functions in practice. The practical availability of qualified physicians willing to perform presuit reviews therefore deserves attention alongside the legal standards governing the affidavits themselves.

Does the System Screen Bad Claims—or Claims Without the Right Infrastructure Behind Them?

Chapter 766 is premised upon a legitimate objective: medical-malpractice allegations should possess reasonable professional support before healthcare providers are subjected to litigation. A sound screening system, however, should screen principally for merit. It should not unintentionally screen for access to capital, access to specialized expert networks, or access to a law firm sufficiently established in the malpractice bar to know which physicians will perform presuit reviews without first paying an expensive intermediary simply for a name.

Those factors inevitably influence the present system. A patient with a potentially valuable catastrophic-injury case may readily obtain representation because a major plaintiffs’ firm can justify investing substantial resources in it. A patient with a legitimate but economically smaller case may face a very different reality because the case, although medically sound, may not be economically attractive enough for a firm to assume the expense and risk of navigating the expert market, satisfying presuit, retaining additional experts, and financing years of litigation.

The medical merits of those two claims may be equally strong, while their practical access to the courthouse is not. That is the difficult policy issue. A system justified as a mechanism for separating meritorious malpractice claims from frivolous ones can also separate claims backed by sufficient litigation infrastructure from those that are not, and those categories are not necessarily the same.

The Legislature Should At Least Ask Whether the System Still Serves Its Intended Purpose

None of this means that Florida should simply eliminate all presuit screening. Medical-malpractice litigation presents genuine concerns that ordinary negligence litigation does not, expert review is frequently necessary, and unsupported malpractice accusations impose real costs upon physicians and healthcare institutions. Those are legitimate policy considerations, but the existence of legitimate objectives should not end the inquiry into whether the current mechanism remains the best way to achieve them.

Florida should periodically examine whether the means chosen to accomplish those objectives continue to work as intended. If qualified practicing physicians who are willing to discuss questionable treatment nevertheless decline to provide litigation opinions, if claimants are driven toward specialized expert-referral markets, if intermediaries can demand thousands of dollars merely to identify a potential reviewing physician, if the physician’s own review and opinion then require additional payment, and if large repeat-player firms possess substantial structural advantages in navigating the process, those facts matter.

So does the amount of litigation generated over compliance with the mechanism supposedly designed to reduce litigation. At minimum, Florida policymakers should be willing to ask whether Chapter 766 has remained a reasonable mechanism for screening unsupported medical-negligence claims or whether it has evolved into a procedural and economic barrier that sometimes prevents potentially legitimate claims from ever reaching the merits. That is a policy question the Fifth District could not answer in Wells, but the case provides a useful reason to ask it.

The Bottom Line

The Fifth District held that the direct-negligence claim against North Florida OBGYN and the informed-consent claims against Dr. Wells and the practice could not proceed because the required presuit expert corroboration had not addressed those theories. For lawyers, the doctrinal lesson is straightforward: completing Chapter 766 presuit for one medical-negligence theory does not necessarily complete presuit for every theory arising from the same course of treatment.

The larger lesson is more troubling because the expert affidavit is effectively a ticket to the Florida courthouse. It must be obtained before ordinary civil discovery begins, it must come from a qualified medical professional willing to participate in litigation, and it may need to address multiple defendants and distinct theories of liability. In the real world, a claimant may encounter substantial expense before even reaching the physician who might provide it.

In my own experience, an intermediary sought approximately $3,500 merely to provide the name of a physician I could contact about potentially performing the necessary review. That did not include the physician’s review, did not include an opinion, and did not include an affidavit or testimony. Those matters would have come later, assuming the physician was willing to become involved at all.

Large medical-malpractice firms are built to navigate that environment because they possess the capital, expert networks, institutional knowledge, and case volume necessary to do so efficiently. Ordinary patients and smaller law firms do not necessarily operate on equal footing. Florida is entitled to require reasonable medical support before healthcare providers are subjected to malpractice litigation, but there is a substantial difference between screening out claims that lack medical merit and creating a system in which access to specialized expert networks becomes a practical condition of access to the courts.

Wells v. Quintero demonstrates how seriously Florida courts take that statutory gatekeeping function. The more difficult question for the Legislature is whether, in the real world, Florida has made the gate too expensive and too difficult for some legitimate claims to pass through.