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Don’t Wait for Florida’s Statute of Limitation for Medical Malpractice to Expire

Florida Medical Malpractice Statute of Limitations

Like many states, Florida has laws that treat legal actions for medical malpractice differently from other kinds of personal injury lawsuits. The procedures and deadlines set forth in the Florida Comprehensive Medical Malpractice Reform Act, first enacted in 1985 and since amended, create numerous hurdles for medical malpractice victims and their attorneys to clear before they can have their day in court. In this blog post, we take a deep dive into the laws that govern the timing, sequence, and substance of medical malpractice claims in the Sunshine State. For an even more in-depth review of the law, check out this comprehensive article published in 2003 by the Florida Bar Journal.

A Quick Overview of What We Mean by Medical Malpractice

But first, let’s take a quick look at what we mean by the term medical malpractice. Technically, Florida law uses different terminology for medical malpractice, calling it instead medical negligence. In this blog post, however, we will use those terms interchangeably. Under the Florida law linked above, medical malpractice occurs when a health care provider breaches the prevailing professional standard of care in the diagnosis, treatment or care of a patient, thereby resulting in an injury or death to the patient. Let’s break down what that means.

Healthcare Provider

The law defines a healthcare provider as:

  • Any hospital or ambulatory surgical center;
  • A birth center;
  • A medical doctor;
  • An osteopathic doctor;
  • A chiropractic doctor;
  • A podiatrist;
  • A naturopath;
  • An optometrist;
  • A registered nurse or nurse practitioner;
  • A dentist, dental hygienist, or dental laboratory;
  • A midwife;
  • A provider of orthotics, prosthetics, or pedorthics;
  • A physical therapist;
  • A health maintenance organization;
  • A blood bank;
  • A plasma center;
  • An industrial clinic;
  • A renal dialysis facility; or
  • A professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

While that is a long and detailed list, it does not necessarily cover everyone the average person might think of as someone involved in delivering their health care. Consult with an experienced medical malpractice attorney to determine whether the service provider who harmed you falls within the definition of a healthcare provider under Florida law.

Prevailing Professional Standard of Care

Under Florida law, medical malpractice only occurs if a health care provider violates the prevailing professional standard of care for that health care provider. The law goes on to clarify that “[t]he prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” In other words, the standard of care owed by your healthcare provider is somewhat subjective. It can depend on your provider’s training, location, practice specialty, and patient mix, among other factors. The standard of care required of a top cancer specialist in Miami may differ from that of a family medicine provider in Destin, even if those doctors treat the same patient for the same health condition.

Resulting in Injury or Death

Medical Malpractice Attorneys FloridaTo sustain a medical malpractice claim in Florida, the claimant must show a causal connection between the claimed breach of the prevailing professional standard of care and injury or death. The law makes clear that “[t]he existence of a medical injury does not create any inference or presumption of negligence against a health care provider,” unless that injury consists of the discovery of “the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures.” In other words, unless a health care provider left something inside of you, you cannot simply point to a medical injury as proof your health care provider breached the standard of care. Also, “if the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.” In other words, an injury doesn’t qualify as a medical malpractice injury in Florida if it was the sort of harm that is within the reasonably expected risks of a medical procedure or treatment otherwise performed correctly.

Florida Medical Malpractice Statute of Limitations: The Basics

A statute of limitations is a time period, established by law, within which a person must commence a legal action. Failure to start a legal action within the statute of limitation period usually results in the extinguishment of the right to take that action. In short: use it or lose it. In Florida, the statute of limitations for run-of-the-mills personal injury actions is four years. But the statute of limitations period for medical malpractice claims is much shorter. A person injured by a health care provider’s actions (or the estate of a person who died) has just two years to file a claim after the person discovers (or should have discovered) that a health care provider’s actions may have caused injury or death. A victim must also bring a claim within four years of the health care provider’s actions, regardless of when they were discovered (this maximum time frame on taking action is called a statute of repose). There are only limited exceptions to the two-year time limit for medical malpractice.

  • If the victim was not able to discover the incident because of fraud, concealment, or intentional misrepresentation by a health care provider, the maximum period for bringing a claim will be extended to seven years from the date of the incident.
  • If the victim was under age 8 at the time of the incident, the maximum period for bringing a claim is extended at least until the victim’s 8th birthday.

As you might imagine, these rules raise some tricky questions for medical malpractice victims and their attorneys. In every case, they must identify when was the earliest point at which the victim discovered, or should have discovered, the health care provider actions that led to the injury? That is not always a straightforward question, and it can make an enormous difference in whether a claim can survive. That is why, as a rule of thumb, anyone who has suffered an injury or tragic loss relating to health care services in Florida should consult with an experienced medical malpractice attorney immediately. The window of time for taking action is very short.

Mandatory Procedures Impact Statute of Limitations Considerations

The medical malpractice reforms the Florida legislature has passed over the years have, by-and-large, aimed to make it more difficult for victims and their lawyers to bring cases. The prevailing view has been medical malpractice claims made insurance prohibitively expensive for doctors, and that by subjecting claims to pre-suit review and other requirements, the law could reduce the number of claims filed. Experienced Florida medical malpractice lawyers know the ins-and-outs of these procedures. But knowing them and having enough time to comply with them are two different considerations. Lawyers and their clients considering bringing a claim for medical malpractice must not only think through the strength of the claim, but also whether they have enough time to clear the hurdles to filing it. Here are some of the considerations:

A Little Extra Time for Pre-Filing Investigation, if You Ask For It

Before an attorney can file a medical malpractice claim, Florida law requires the attorney to conduct a “reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Most Florida medical malpractice attorneys satisfy this requirement by following the law’s suggestion that they obtain an expert’s opinion that medical negligence occurred. To give the attorney and expert time to get this information together, the law permits the attorney to file a petition with the court where the suit will be filed for a 90-day extension of the statute of limitations. This is helpful, but it’s still not a lot of time. Attorneys and their clients need to gather relevant medical records quickly, and have medical experts at the ready, to take full advantage of the extra time the law affords them.

90-Day Post-Notice Period

Attorneys for victims of medical malpractice have to give notice to the potential defendant(s) in the lawsuit of an intent to file a claim. Giving this notice stops (or tolls) the statute of limitations clock for 90 days, and stops the clock on the four-year maximum time limit for taking action. During this 90-day post-notice period, the defendant must investigate the claim, cooperate in reasonable discovery with the claimant, and then give one of three responses: rejection of the claim; a settlement offer; or an offer to admit liability and arbitrate damages (failure to respond altogether constitutes a rejection). The claimant cannot file a lawsuit during this 90-day period. The parties are allowed by law to negotiate and agree on a longer period of post-notice investigation and negotiation. If they do, then once that extended period ends without a settlement, the claimant has 60 days or the remainder of the limitations period, whichever is longer, to file suit.

Birth-Related Neurological Injuries Treated Differently

Medical malpractice claims arising out of birth-related neurological injuries get special treatment under Florida law. Before a civil lawsuit may be filed for this type of claim, the claimant must first seek compensation from a state-administered fund set aside to pay families in such cases on a no-fault basis. An administrative law judge determines these claims. While a claim relating to a birth-related neurological injury is pending before an administrative law judge, the statute of limitations for filing a civil medical malpractice claim is paused. The clock begins to run again if the administrative law judge decides the claim is not covered by the fund.

The Importance of Hiring the Right Attorney, and Right Away

The rules we review above should give you a clear sense of how complicated the act of filing a medical malpractice claim in Florida can be, let alone investigating the claim’s facts and proving it in court. That is why it is so important to hire an attorney with a deep and comprehensive understanding of Florida’s medical malpractice laws, and who has the resources to clear the hurdles necessary for filing a viable claim. There are simply too many pitfalls in the process to an attorney with limited experience in this area of Florida law. These rules should also reinforce the importance of acting quickly on any suspected incident of medical malpractice. Time is short to take action, and you want your attorney to have the largest window of time in which to investigate as possible. So, as soon as you or a loved one sustain an injury or suffer a tragic loss that is connected, in any possible way, to health care services, contact an experienced Florida medical malpractice attorney. Do not wait until you have what you think is ironclad proof a doctor did something wrong. Chances are that kind of proof is difficult to come by, and you likely need someone with the expertise and know-how to figure out how to get it. Thus, err on the side of caution and seek a lawyer’s input as soon as you can. A skilled medical malpractice lawyer will have the knowledge and resources to get to work immediately investigating your claim, to figure out if it has a reasonable prospect of succeeding. Medical malpractice injuries in Florida happen on a distressingly routine basis. It takes sound, sophisticated, diligent legal work to obtain justice for those injured by a healthcare provider. Do not wait to seek help, contact a Florida medical malpractice lawyer today. Sibley Dolman Gipe Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 (727) 451-6900 https://www.dolmanlaw.com/legal-services/medical-malpractice-attorneys//