All accident victims have a limited time to file their claims.  In Florida, the statute of limitations for medical malpractice is two years from the date of the incident giving rise to the claim or two years from the date the incident was discovered or should have been discovered, but not more than four years from the date of the incident.  Section 95.11(4)(b), Florida Statutes.

The date of discovery is often at issue in medical malpractice claims.  It can be difficult to pinpoint the exact date on which the plaintiff knew or should have known that there was a reasonable possibility that medical malpractice caused the injury.

The Second District recently considered the application of the medical malpractice statute of limitations in Bove v. Naples HMA, LLC.  The plaintiff in this case was the wife and personal representative of a man who died from a retroperitoneal bleed after he had a bone marrow biopsy.  The plaintiff’s husband died on February 26, 2012.  A doctor who did not perform the biopsy determined that the bleed was a co-morbid condition that acted with other medical issues.

According to the plaintiff, she met with the doctor who performed the biopsy on April 19, 2012.  She met with her attorney in July of the same year.  On February 2, 2014 and February 23, 2014, she received letters from experts who opined that her husband’s death had been caused by the bleed and that the bleed in turn had been caused by the biopsy.  She sent a notice of intent to pursue litigation to the medical center on February 25, 2014.  The medical center did not receive that notice until March 4.  The notice stated that the family and estate “discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy” on the date of the plaintiff’s husband’s death and that the statute of limitations would run from that date.

She served her notice of intent on the doctor who directed the biopsy on May 12, 2014, and it was received on May 19.  She served the notice of intent on the doctor who performed the biopsy on June 11, 2014, and he received it on June 16.

The plaintiff filed petitions for extensions of the statute of limitations at the end of April.  She then filed her complaint after receiving all of the denials of the notices.  Both doctors and the medical center moved to dismiss. The trial court granted the defendants’ motions on the grounds that the claim was time-barred because of the plaintiff’s failure to file suit within the statute of limitations.

The plaintiff argued she only learned of the defendants’ possible negligence in July 2012 when she met with her attorney. She also argued that the complaint was timely because she had moved for extensions.

The court noted that there could be circumstances in which this type of injury was not obviously caused by medical malpractice.  The plaintiff here, however, was bound by the statement in the first notice of intent sent to the medical center.  That notice identified the date of death as the date that the family and estate discovered the medical negligence of the providers who performed the biopsy.  The plaintiff argued that the notice was not evidence and in fact contradicted the affidavit she filed in response to the motion to dismiss.  In the affidavit, the plaintiff stated she was not aware of possible malpractice until she met with her attorney in June.

The appeals court noted that parties are generally bound by the statements in their own pleadings.  The court acknowledged that the notice was not a pleading, but it pointed out that it was a statutory prerequisite to filing an action that contained factual allegations.  The court held the plaintiff was bound by the notice of intent and its statement that she became aware of the possible negligence of the defendants on the date of her husband’s death.  The statute of limitations therefore expired on February 26, 2014.

The plaintiff also argued that she served the medical center on February 25, 2014 and that the statute of limitations was tolled.  The court acknowledged that the statute of limitations is tolled for 90 days following service of notice of intent.  However, the rule states that the notice “sent by certified mail to and received by any prospective defendant” operates as notice to other prospective defendants with a legal relationship to the served prospective defendant.  Furthermore, the rule provides that the notice of intent is to be served by certified mail with return receipt requested before the statute of limitations expires. Florida Rule of Civil Procedure 1.650(b)(1).   The court held that the references to the receipt of the notice and certified mail indicated that the date the notice is received determines whether the statute has been tolled.  Here, although the plaintiff mailed the notice before the expiration of the statute of limitations, it was not received until after the statute of limitations expired.

The plaintiff also argued that the date of discovery was a fact question to be decided by the jury.  The court agreed that this might be true in some cases, but here the plaintiff had admitted the date she knew or should have known of the possible malpractice was the date her husband died.

The appeals court affirmed the trial court’s judgment.

The statute of limitations in many injury cases is easy to ascertain.  In medical malpractice cases, however, the statute of limitations is often based on the discovery rule, making it more difficult to determine exactly when it begins to run.  Our personal injury attorneys know the importance of acting promptly, while still investigating and building the case.   If you or a loved one have been seriously injured by the negligence of a medical professional, you need an experienced Florida personal injury attorney who understands Florida law. Call Anidjar & Levine at 800-747-3733 to schedule a consultation.