The timing of a lawsuit is a crucial issue in any case, but particularly in medical malpractice actions where tight restrictions require an injured person to not only meet certain pre-suit requirements but also file suit within a strict deadline. In Woodward v. Olson, the Second District Court of Appeal explains how the deadline works for a patient claiming she’s been mistreated over the course of many years.
Mrs. Woodward was a heavy smoker with cancer in her family when she started regularly seeing Dr. Olson in 1989. Woodward was injured when she fell from the roof of her home in 2002 and was later admitted to a local emergency room. A radiologist’s report on X-rays taken at the time indicated that the X-rays showed an “area of increased density” in the right lung. Although the radiologist recommended follow-up examinations, Dr. Olson did not tell Woodward about the x-ray results, nor order additional tests.
Following X-rays in August 2005 and January 2008, radiologists again identified issues with Woodward’s right lung and recommended follow-up tests. Olson, in turn, did not provide the X-ray results to Woodward nor schedule additional tests. He retired in 2009. When Woodward saw a new physician, the doctor immediately told her about the earlier X-ray results, which had been included in her medical file. Woodward was later diagnosed with lung cancer.
Woodward and her husband sued Dr. Olson and his hospital for medical malpractice in June 2010. The trial court granted summary judgment to Olson, ruling that the action was barred under Florida’s statute of repose. Section 95.11(4)(b), Florida Statutes, provides that a medical malpractice suit can be brought not later than four years after “the date of the incident or occurrence out of which the cause of action accrued.” Woodward had alleged that the malpractice began in 2002.
The Second District disagreed with the lower court, however. “[I]n a medical malpractice case, it is the discrete incident of malpractice that triggers the running of the statute of repose,” the court explained, citing the Fourth District’s 1987 decision in Carr v. Broward County. Here, Woodward alleged more than one discrete incident of malpractice, according to the court. The first was during her 2002 emergency room visit when Olson failed to mention or act on the x-ray results. The two similar, but separate incidents in 2005 and 2008 were other discrete events.
The court rejected Olson’s argument that the incidents were all part of the same course of treatment that began in 2002. As a result, Woodward’s claims based on the 2008 incident were not barred by the statute of repose. The Second District remanded the case back to the lower court for further proceedings.
If you or a loved one have been injured by poor medical care, contact the South Florida medical malpractice attorneys at Anidjar & Levine. Our firm represents clients throughout the area, including in Hialeah, Hollywood and Pompano Beach, and offers a free initial consultation from our Fort Lauderdale offices. Call the firm today at 800-747-3733.
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