Florida Medical Malpractice Lawyer Discusses the Perils of the Statute of Limitations
I recently received a phone call from a potential client who appeared to have a valid medical malpractice claim. One of the first questions that I ask when consulting a client, is when did you receive the medical care? This potential client responded in June 2009. I asked him, why did you wait so long to speak with a lawyer? He answered, I was very sick and for the first couple of years I did everything I could to stay alive. Additionally, it wasn't until recently that I realized my injury may have been caused by medical malpractice. I told him that he has a statute of limitations issue.
What is the Florida Medical Malpractice Statute of Limitations?
The simple answer to the question is 2 years. The more complex answer is that the statute of limitations requires a specific factual inquiry. The law is set out in Chapter 95.11(4)(b), Florida Statutes:
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.
As you can see, there is some wiggle room depending on the victim's reasonableness in discovering the facts that suggest they “should have known” of the incident. Additionally, you will note that there is a four year statute of repose, which cuts-off the discovery rule.
Statute of limitations for Children
An infant and child who is a victim of malpractice has a longer statute of limitations. A simple way to remember it is the 8th birthday rule. The statute says: …. 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.
This rule allows for certain conditions that may have occurred at birth but do not manifest until later in life including cerebral palsy and some genetic defects.
Statute of Repose
95.11(4)(b), Florida Statutes also sets an outer limit for bringing a medical malpractice claim. This is called the statute of repose. The outer limit is 4 years. So even if a medical malpractice victim does not discover the medical malpractice until 5 years after the event (i.e. a misdiagnose on a pathology slide or x-ray), he or she will not be able to pursue a claim because of the statute of repose.
As you can see, Florida medical malpractice is complex. If you suspect a potential medical malpractice claim, you should consult with a Florida medical malpractice lawyer as soon as practical. If you would like to discuss you potential claim, I am available at (352) 267-9168 or fill out the internet consultation box on the right side of the screen.