When medical malpractice occurs, the victim often suffers a serious injury. Death may even result. During this period of suffering and grieving, it can be difficult to think about filing a legal claim and time deadlines. However, there is a statute of limitations for medical malpractice in Florida. Victims and their families must be aware of the time limit to file their legal claim.
Let’s talk about the statute of limitations, when it applies, and the importance of meeting the deadline.
Florida Medical Malpractice Statute of Limitations Explained
What is the statute of limitations in Florida for medical malpractice claims?
Florida’s general statute of limitations for medical malpractice claims is two years. However, it can be extended up to four years in cases where the discovery of the injury is delayed. There are exceptions for young children and fraud.
To understand the statute of limitations in a Florida medical malpractice case, it’s important to understand what a statute of limitations is.
What is the statute of limitations?
A statute of limitations is the period of time that a person has to file a legal case. It’s a deadline set for a particular type of case to start a claim.
What happens if you miss the statute of limitations for medical malpractice?
If the plaintiff files the case after the deadline, the defense can ask to have the case quickly dismissed. The merits of the case no longer matter if the plaintiff misses the statute of limitations. Missing the deadline can be enough to lose even the best case.
It’s very important to know the deadline and get the case filed on time. The case doesn’t have to be completed by the deadline, just formally started. Once the case begins, there is no set timeline for how long it can take other than court scheduling and other procedural deadlines that may apply.
What kinds of cases does the statute of limitations for medical malpractice apply to?
The statute of limitations for medical malpractice applies to healthcare procedures, including:
- Medical
- Dental
- Surgical
Where malpractice occurs during diagnosis, treatment or care. Damages may relate to:
- Death
- Injury
- Monetary loss
The statute applies whether a claim is made in tort or breach of contract.
Medical Malpractice Statute of Limitations Law
What is the Florida law for the medical malpractice statute of limitations?
Florida Statutes § 95.11(4)(b) is the statute of limitations for medical malpractice actions. The law says a plaintiff has two years from the incident or the date of discovery but not more than four years from the date of occurrence to bring a claim for medical malpractice.
What are the exceptions to the medical malpractice statute of limitations?
There are several circumstances where the medical malpractice statute of limitations may be extended, including:
- Young children: Who may file until their eighth birthday
- Delayed discovery: Two years from the date of discovery but not more than four years from the occurrence
- Fraud, where the fraud prevented discovery of the occurrence: Two years from the date of discovery or when the malpractice should have been discovered but not more than seven years from the date of occurrence
- Concealment or intentional misrepresentation: Treated the same way as fraud
If an exception applies, the plaintiff is not bound by the two-year limitation. If they meet the time limit for their situation, they may pursue their compensation in full.
Understanding and Following the Time Deadline for a Florida Medical Malpractice Claim
Why is there a Florida medical malpractice statute of limitations?
The purpose of the Florida medical malpractice statute of limitations is to encourage the parties to litigate claims while information, witnesses, and evidence are most readily available. With evidence intact and memories fresh, the parties can litigate a case more efficiently. In addition, time limitations give finality to the parties.
What does it mean to discover an injury for the purpose of the medical malpractice statute of limitations?
With delayed discovery of an injury providing a possible exception to the statute of limitations, the question of what qualifies as discovering an injury often becomes a key issue in a case. In Tanner v. Hartog, 618 So.2d 177 (1993), the court said that knowledge of the injury and knowledge of the possibility it was caused by medical malpractice is what is required for the statute of limitations to begin to run. The court said that an ordinary person might attribute an injury to natural causes. It is not until there are indicators communicating the possibility of medical negligence that the time limit begins to run. The court pointed out that, practically, extending a reasonable person standard to the discovery requirement may do little more than extend the limitation to the four-year statute of repose.
There has been significant litigation surrounding the question of delayed discovery in medical malpractice claims. The Florida Bar Journal cautions that the ruling in Tanner may not be broad enough to give sweeping relief to malpractice victims who may discover their injuries late.
Case law has continued to develop through the years, and court opinions have varied. Additional case law discussing the topic of delayed discovery and its impact on the statute of limitations in medical malpractice claims includes Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976), Moore v. Morris, 475 So.2d 666 (Fla. 1985), Barron v. Shapiro, 565 So. 2d 1319 (Fla. 1990), and University of Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991).
Statute of limitations and the notice before filing an action
Florida Statutes § 766.106 requires a medical malpractice plaintiff to submit a notice of intent before filing their legal claim. The purpose of the notice is to give the defense the opportunity to investigate liability and minimize litigation by encouraging early case resolution.
Once the plaintiff serves their notice on the defendant, they cannot file their legal claim for 90 days. Fortunately, the statute of limitations against the intended defendant tolls during this time. The plaintiff must submit their notice within the statute of limitations presented in Florida Statutes § 95.11. Then, the defense has 90 days to investigate and respond, but the statute of limitations period stops during that time. The 90-day tolling period begins at the first attempt of service upon the defendant.
Legal Help for Medical Malpractice and the Statute of Limitations
If you believe medical malpractice may have occurred to you or a loved one, don’t wait to contact our law firm. We are an experienced and aggressive legal team. The team at Scarfone Auto Accident and Personal Injury Attorneys will pursue every opportunity for you to receive justice. Time deadlines may apply, so don’t wait. Contact us today for your consultation and begin your case.