Medical Malpractice Statute of Limitations Case Law Update

Medical Malpractice in Florida is a virtual minefield that requires Medical Malpractice Lawyers to navigate the complex pre-suit process and the complex statute of limitations scheme.   The statute of Limitations for medical malpractice claims is  two (2) years.  The ambiguity centers around when the clock starts ticking on the two (2) year period.  

Florida Statute 95.11(4)(B) states:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday

Recently, the Third District Court of Appeals further analyzed what exactly “discovered with the exercise of due diligence” meant with respect to when the clock starts to run on the statute of limitations. After the birth of their son, the Mobley’s realized their newborn, Tavarion, had several health complications. After visits with doctors that said his injuries were not severe, the Mobley’s met with an attorney to try to secure additional Medicaid benefits for their son’s treatments. There was no evidence at the time to suggest the Mobley’s intended to pursue an action for medical malpractice. Their attorney sent a formal request for medical records to Tavarion’s hospital on May 27, 2010 and a follow up on July 20, 2010. By October 2010, that attorney was no longer representing the Mobley’s. Two years after their request for medical records, a neurologist diagnosed Tavarion with Spastic Cerebral Palsy, which is most often caused from lack of oxygen to the infant’s brain during labor and delivery.

After hearing this news, the Mobley’s hired an attorney and began to investigate the potential for a medical malpractice case. They filed suit in July 2013 against the hospital, the delivering doctor, his physician’s assistant, and the surgical assistant for medical malpractice related to the birth of Tavarion. The defendants’ moved for summary judgment and alleged the statute of limitations had already run because the family had requested medical records three years prior. The trial court granted summary judgment for the defendant’s, but the Third District Court of Appeals reversed the judgment. The court held that because it was not until November 2012 when the family found out Tavarion’s condition arose from malpractice, the clock for the statute of limitations began to run at that moment. Since their Notice of Intent was filed in July of 2013, the Mobley’s were well within their statute of limitations to file their action for medical malpractice. The court held that a lawyer simply requesting records does not start the clock for purposes of the statute of limitations.

When an individual believes a medical malpractice case exists, it is essential to find an attorney as soon as possible, specifically one that understands the strict time limits associated with medical malpractice claims.