A personal injury victim who tries to file a lawsuit after the statute of limitations has expired for that particular type of claim will almost certainly have their claim dismissed. That means no matter how legitimate the claim, if it’s not filed timely, there will be no damage recovery.
Florida has a two-year statute of limitations on medical malpractice acts, which is half the normal four years for other types of personal injury lawsuits. There is, however, a seven-year maximum statute of repose cap in cases that involve fraud, concealment or intentional misrepresentation by a defendant health care provider. The only other exception is if the claimant is a minor younger than the age of 8, in which case the seven-year cap won’t affect the child’s ability to bring the action before his or her eighth birthday.
A recent plaintiff in a Florida medical malpractice lawsuit discovered this the hard way when she filed a lawsuit against several physicians for the death of her husband following a bone marrow biopsy.
According to court records in Bove v. Naples HMA from Florida’s Second District Court of Appeal, decedent died in February 2012 of an internal bleed following what should have been a relatively safe procedure.
When the bleed was discovered, patient was evaluated by another doctor who determined it was a “co-morbid” condition, meaning it had occurred in conjunction with other serious, unrelated medical issues. Two months after the surgery, plaintiff met with the physician who performed the biopsy to discuss what had happened. She met with her attorney a few months after that.
Then, in February 2014 – just shy of the two-year mark since the date of surgery – she received copies of two letters from medical experts who opined her husband’s death was caused by the internal bleed and that the bleed was caused by the bone marrow biopsy.
On February 25, 2014 – one year shy of the two-year anniversary of her husband’s surgery – she served the doctors a copy of a notice of intent to sue, along with her husband’s medical records and the two letters from the two medical experts. However, the doctors did not receive this notice of intent until March 4, 2014. The affidavits of those expert witnesses were received by defendant doctors on March 17, 2014.
The notice to the doctors indicated the two-year timeline would begin to run from the date of patient’s death because this was the time at which the family had discovered the alleged negligence.
Other notices against other doctors were sent in May and June of 2014.
In the meantime, plaintiff filed for extensions of the statute of limitations at the end of April 2014.
Defendants responded with denials to all her complaints, and she filed her lawsuit in September 2014. All defendants filed motions to dismiss, citing the statute of limitations.
Trial court ultimately granted those motions solely on the basis that plaintiff failed to file her complaint within that two-year statute of limitations, as outlined in F.S. 95.11(4)(b), which says an action for medical malpractice has to commenced within two years from the time of the incident or within two years of when the incident was discovered or should have been discovered with the exercise of due diligence.
Appellate court affirmed. The court noted that while it could foresee circumstances in which this type of incident – an internal bleed – might not necessarily be the obvious result of medical negligence, in this case, plaintiff was not entitled to that relief based on the facts.
Plaintiff argued she did not know this was a possible medical malpractice case until she met with an attorney in July 2012. However, she indicated in her filing that she first learned about the possible negligence on Feb. 26, 2016 – the date of her husband’s death. Because plaintiff’s are not allowed to take inconsistent positions, plaintiff was bound by that statement to that date.
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Bove v. Naples HMA, April 1, 2016, Florida Second District Court of Appeal
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