Florida medical malpractice lawyer, Guy S. DiMartino, DC, JD, explains the outer limit to file a Florida medical malpractice claim.
Florida's Medical Malpractice Statute of Repose
The statute of limitations for a Florida medical malpractice claim is two years from the time the patient knew or should have known that there was malpractice. Florida law also has a outer limit of time in which somebody could file a medical malpractice case, whether or not they knew of the malpractice, and this is called a statute of repose. Florida's statute of repose is 4 years and it is codified in 95.11(4)(b) as follows:
(b)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.
The Statute of Repose will bar a Florida medical malpractice claim in cases where the disease or condition has a long latency (period of time to develop). For instance, if a radiologist misreads cancer on an x-ray or a pathologist misreads a biopsy slide and the patient has a slow growing condition, the condition may not be diagnosed until after the time limit has expired.
A real life example of how the statute of repose works is reported in Woodward v. Olson. The facts of Woodward were as follows:
- The patient is a smoker and starts seeing Dr. Olson in 1989
- In September 2002, the patient injures herself and is taken the emergency room where she has a chest x-ray. The radiologist sees something in the “right lung.” The report was sent to Dr. Olson.
- Dr. Olson does not say anything to the patient about the radiologist's findings or recommend any type of follow-up.
- The patient follows up with Dr. Olson in September and October 2002.
- The patient sees Dr. Olson on and off for the next three years and he doesn't say anything about the x-ray findings.
- The patient injures herself in 2005 and again goes the emergency room. The emergency room doctor orders a chest x-ray. The radiologist finds something in the right lung and sends the report to Dr. Olson recommending a CT scan.
- Dr. Olson doesn't tell the patient anything about the report or order the recommended CT scan.
- In January 2009, the patient receives a welcome to Medicare exam at Dr. Olson's office and again she underwent a chest x-ray. The radiologist saw a problem in the right lung and recommended further testing.
- Dr. Olson did not discuss the report with the patient or order the additional testing.
- Dr. Olson retired.
- In July 2009, the patient returned to the office and saw a new doctor who reviewed the file and ordered the test the radiologist recommended.
- The patient was diagnosed with Stage IV lung cancer.
The patient filed suit in June 2010 and the defendant to dismiss the complaint based on the statute of repose claiming that the malpractice was in 2002.
The appellate court determined that there were 3 distinct malpractice claims – 2002, 2005 and 2009. The court dismissed the claims for 2002 and 2005 because they were longer than 4 years old. The court allowed the 2009 claim to go forward
The Harshness of the Statute of Repose
It is clear that the patient's cancer was slow growing otherwise she would have been diagnosed or died long before 2009. The court is allowing the patient to proceed with her claim from 2009 forward, which is going to make her case much more difficult to prove. You see, the patient is going to have to prove that she would have had a better outcome if her condition was diagnosed in January 2009 versus July 2009.
As you can see, Florida medical malpractice law can be complex. If you have any questions about a potential Florida medical malpractice case, don't hesitate to give me a call on my cell at (352) 267-9168 where you will be able speak with me directly.