Florida Medical Malpractice Case Reveals the Importance of Staying Within the Statute of Limitations

If you or your family member has suffered harm due to the negligence of someone else, the law limits the time you are able to seek legal relief from the party or parties that are responsible. For many civil cases, the statute of limitations is four years, but with medical malpractice actions, it is 2-4 years under Fla. Stat. § 95.11(4)(a) and (b). The deadline for a medical malpractice notice of intent to be served is two years from the date that the incident giving rise to the action is discovered or should have been discovered. All actions, regardless of when they are discovered, must happen within four years from the date of the incident unless the action is brought on behalf of a minor child before his or her eighth birthday.

4.1.1

At the beginning of this month, the Second District Appellate Court of Florida issued an opinion in Boves vs. Naples HMA (2D15-1680), which discusses what must happen to stay within the two-year statute of limitations for medical malpractice, and what must occur for the extension beyond the two years to apply. In this case, a personal representative filed a medical negligence lawsuit on behalf of the estate of a man who died following a bone marrow biopsy. The man died on February 26, 2012 after he suffered retroperitoneal bleeding. It was eventually determined that the bleeding contributed to his death and was caused by the biopsy performed.

The personal representative met with one of the doctors who performed the biopsy almost two months after the testator’s death. Three months later, she met with her attorney. Almost two years after the death, on February 2, 2014 and February 23, 2014, she received copies of letters from two medical experts, who concluded the testator’s death was the result of the retroperitoneal bleeding caused by the bone marrow biopsy. On February 25, 2014, the personal representative served the physicians who performed the biopsy with a notice of intent to pursue litigation. This was done by certified mail, but the physicians did not receive a copy of the notice until March 4, 2015.

The personal representative also sought extensions of the statute of limitations two months later, filing her complaint on September 8, 2014. The doctors filed motions to dismiss, which were granted solely based on the failure to fall within the two-year statute of limitations. The representative appealed, arguing that she mailed the notices on the day before the two years expired, and that the discovery of the cause of death did not occur on the date of death but later, providing the extension of time allowed under §95.11(4)(a) and (b).

The appellate court, like the trial court, was not persuaded by this argument. The court looked at the dates of her meeting with the physician and with her attorney prior to her filed notices. The court also looked at the fact that the notices were mailed on the day before but were not received until several days later. The court pointed to Florida Rule of Civil Procedure 1.650(b)(1), which deals with medical malpractice actions and specifically requires that the notice of intent to initiate litigation be sent by certified mail and received by the prospective defendant prior to the expiration of the applicable statute of limitations. The lower court’s decision was upheld, and the estate was precluded from pursuing the medical malpractice action.

The Florida wrongful death attorneys at Donaldson & Weston have the experience you need to handle your medical malpractice or personal injury action. Our attorneys are here to make sure your case is fully litigated and compliant with the applicable statute of limitations. For a free, confidential consultation, call our office today at 772-266-5555 or 561-299-3999.

More Blog Posts:

Florida Appellate Court Reinstates Injured Automobile Passenger Award of Over $93,000, South Florida Injury Lawyer Blog, February 17, 2016

Florida’s First District Court of Appeal Allows Child’s Wrongful Death Suit to Continue, South Florida Injury Lawyer Blog, January 18, 2016