(The information on this site applies to Florida only)

This article was written by Scott R. McMillen and first published in the Florida Bar Journal in November, 1996.

THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS:
SOME ANSWERS AND SOME QUESTIONS

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Footnotes

1. The text of Fla. Stat. 95.11(4)(b) (1993), reads in its entirety:
(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 action accrued. An "action for medical malpractice" is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or physical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date of the incident giving rise to the injury occurred.

2. Medical negligence claims are initially commenced by the serving of a notice of intent to initiate litigation pursuant to Fla. Stat. 766.106 (1993). There are statute of limitations tolling periods provided for in Fla. Stat. 766.106(4) and 766.104(2), which are beyond the scope of this article.

3. Fla. Stat. 95.11(4)(b).

4. Id.

5. Id. Left for another article, and further case development, is the question of what actually constitutes "fraud, concealment, or misrepresentation" required by the statute to extend the four year statute of limitations to seven years. Query whether fraud, concealment, and misrepresentation are three different types of conduct?

6. Tanner v. Hartog, 618 So.2d 177, at 179 (Fla.1993).

7. Arthur v. Unicare Health Facilities, 602 So.2d 596, at 598 (Fla.2d DCA 1992).

8. FLA. STAT. 95.11(4) was amended twice subsequent to the incident giving rise to the medical negligence cause of action in Nardone and prior to the decision itself. Nardone, 333 So.2d at 32, n. 4.

9. See e.g. Moore v. Morris, 475 So.2d 666 (Fla.1985), which suggests that mere knowledge of the adverse result, standing alone, does not necessarily trigger the running of the statute of limitations.

10. Menendez v. Public Health Trust, 566 So.2d 279, 282 n. 3 (Fla.3d DCA 1990), approved, 584 So.2d 567 (Fla.1991), "[a] defect at birth does not necessarily put the parents on notice of injury and possible negligence."; Southern Neurological Associates v. Fine, 591 So.2d 252, 256 (Fla.4th DCA 1991), "Knowledge that one suffered injury...need not constitute notice of negligence or injury caused by negligence."; Norsworthy v. Holmes Regional Medical Center, Inc., 598 So.2d 105, 107 (Fla.5th DCA 1992), affirmed 618 So.2d 186 (Fla.1993), "Perhaps we read...Barron too optimistically, but we believe those cases simply stand for the proposition that when the nature of the bodily damage that occurs during medical treatment is such that, in and of itself, it communicates the possibility of medical negligence, then the statute of limitations begins to run."; Rogers v. Ruiz, 594 So.2d 756, 772 (Fla.2d DCA 1991) (Parker, J., concurring), "It is my belief that...[the Nardone rule] rips at the very fabric of our society... Once the body is in the ground...the grieving family member...should retain an attorney immediately and start subpoenaing medical records."

11. Tanner, 618 So.2d at 181.

12. Id.

13. Id. at 182.

14. Id.

15. "Wrongful birth" is a cause of action involving an impaired child where the parents allege that negligent conduct deprived them of the ability or knowledge to avoid becoming pregnant or to terminate the pregnancy before the injured child is born. The cause of action is for the parents, involving their emotional damages and the extraordinary expenses of raising the child. "Wrongful life" is a cause of action on behalf of the child born with birth defects, alleging the child's birth should not have occurred. "Wrongful life" is not a recognized tort in Florida. Kush, 616 So.2d at 417, n. 3.

16. Lloyd v. North Broward Hospital District, 570 So.2d 984, at 986-87 (Fla.3d DCA 1990).

17. Kush v. Lloyd, 616 So.2d at 419.

18. The complaint alleged the negligence caused his injuries and death, or, alternatively, the negligence caused his injuries but he died of natural unrelated causes. Arthur, 602 So.2d at 598.

19. Id. at 599.

20. Id.

21. Id.

22. Id.

23. Id.

24. Guardianship law defines "incompetent" as a person who, because of minority, mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both. Fla. Stat. 744.102(5) (1993).

25. If a family member with prior knowledge becomes appointed guardian, query whether the two year clock begins anew then, or whether any prior period of time with knowledge gets deducted. If it is the latter, the result is the same as imputing the person's early knowledge to the patient. If this becomes the rule it could perhaps be avoided by enterprising lawyers by appointing a guardian with no knowledge, or more recent knowledge.

26. Fla. Stat. 768.20 (1993).

27. Fla. Stat. 733.301 (1993).

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