SERVING ALL OF FLORIDA
STATUTE OF LIMITATIONS
(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
SOME ANSWERS AND SOME QUESTIONS
Part 1 Part 2 Footnotes
The time limitation for filing medical negligence claims in Florida is governed in the first instance by F.S., 95.11(4)(b).(1) This statute contains three separate time periods that may be applicable. First, the case must be commenced(2) within two years "...from the time the incident is discovered, or should have been discovered with the exercise of due diligence."(3) Because the date a patient discovered, or should have discovered, an incident of medical negligence may be many years following the actual medical treatment, the legislature also saw fit to impose a second limitation in the form of an absolute statute of repose. The statutory language thus continues, "...in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the action accrued."(4) In order to avoid encouraging concealment of negligent conduct by health care providers, the statute concludes with the third time period. In cases where the plaintiff can show that "fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four year period, the period of limitations is extended forward two years...but in no event to exceed seven years from the date the incident giving rise to the injury occurred."(5)
When statute of limitation issues arise in medical
negligence cases, they most often involve the
interpretation or application of the two year limitations
period, rather than the four year or seven year statute
of repose. This article focuses on the impact of recent
appellate decisions regarding the two year statute of
limitations, particularly addressing the kind of
knowledge that will trigger the commencement of the two
year limitations period and who must have that knowledge
before the clock will begin running.
What Must Be Known?
Many good trial lawyers were surprised in 1990 when the Florida Supreme Court issued its decision in Barron v. Shapiro, 565 So.2d 1319 (Fla.1990). That decision reaffirmed a principle first announced in Nardone v. Reynolds, 333 So.2d 25 (1976), that the statute of limitations for filing medical negligence cases begins to run when the plaintiff has either notice of the negligent act giving rise to the cause of action or notice of the physical injury that was caused by the negligent act. This principle has been referred to as the Nardone rule,(6) and the "discovery rule".(7)
In Barron, the patient developed a serious infection following an operation on his colon. He was heavily medicated for the infection, and within four months he was diagnosed as blind. Under these facts the Supreme Court, citing Nardone, held that the patient's knowledge of his injury, which was blindness, was enough to start the clock ticking regardless of whether he had any reason to suspect the blindness was caused by his medical treatment.
The resurrection of the Nardone rule in Barron caught litigants by surprise because statutory changes(8) and case law(9) since the Nardone decision in 1976 suggested that a plaintiff must have actual or constructive knowledge of both the injury and the negligent act, not just one or the other, in order to start the limitations period.
Strict application of the Nardone rule could have harsh results for plaintiffs in a number of circumstances. Many times a particular disease process results in medical complications, including significant permanent injury or even death, without negligence having occurred. Defense lawyers often raise this argument during voir dire, trying to condition prospective jurors that, just because a patient died or became disabled, they should not conclude that malpractice had occurred. Numerous cases are defended on the same ground. There may be nothing about an injury or death, standing alone, to remotely suggest to the patient or his family that there was medical negligence in treating the patient, yet the Nardone rule starts the clock ticking on the two year limitations period for filing a claim as soon as the injury or death occurs. In many cases of medical negligence this rule effectively creates a two year statute of repose simply because injury often occurs at the time the negligence is committed, or promptly thereafter.
After the Nardone rule was revived by Barron, several District Courts of Appeal were reluctant to strictly apply the rule.(10) Recognizing that reluctance, and the severe application of the rule in certain cases, the Florida Supreme Court revisited the issue in 1993.
In Tanner v. Hartog, 618 So.2d 177 (Fla.1993), the Supreme Court announced it was "...determined to place an interpretation on the Nardone rule designed to ameliorate the harsh results which can sometimes occur by its strict application."(11) The Court acknowledged the unjust result the Nardone rule caused in situations where the adverse consequences of which the plaintiff had knowledge often also occurred as a result of natural causes not related to negligent conduct. The Court further recognized that the Nardone rule strained the doctor-patient relationship by requiring a patient to make an early investigation of the possibility of malpractice whenever something unfortunate happens in the course of medical treatment. The Court then held that henceforth the knowledge required to trigger the commencement of the statute of limitations would be "...not only knowledge of the injury, but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice."(12)
Tanner acknowledged that the new rule would make it much more difficult for a judge to decide as a matter of law when the statute of limitations begins to run, so the issue would now more often require the jury's input as fact-finder.(13) It was noted, however, that there is still a four year statute of repose for medical negligence claims, which creates an absolute bar to bringing the action; the statute of repose is measured four years from the date the medical negligence occurred, irrespective of anyone's actual or constructive knowledge. Because in most cases the date the medical negligence occurred will be undisputed, the application of the four year statute of repose will generally still be a matter of law for the court to decide.(14)
The practical effect of the Tanner rule for plaintiffs may be that, for most types of cases, the two year statute of limitations is of little concern, and only the four year statute of repose, measured from the date of the negligent act, will be critical. In the past it was easy for a defense lawyer to argue to a judge on a motion for summary judgment that, irrespective of whether the defendant was negligent, the plaintiff must lose because he technically filed his case too late, i.e. he filed it more than two years after he knew or reasonably should have known of the injury. It will be much more difficult to argue to a jury that the case was filed too late because the plaintiff knew or should have known of the injury and also the reasonable possibility there was negligence. What would the defense lawyer argue at the close of trial? "Members of the jury, I submit to you that the overwhelming evidence in this case is that Dr. Doe was not negligent; but if you think he was negligent, clearly his negligence was so obvious that the plaintiff should have realized it shortly after it occurred."
Of course no defense lawyer would make his argument quite this way, but every defense lawyer should recognize that the plaintiff's lawyer will recharacterize the defense argument in this manner. Only if the defense is conceding liability will the statute of limitations defense be a straightforward argument to a jury. Even then, however, it will be a difficult argument on which to prevail, because of the natural reluctance of jurors to exonerate an admittedly negligent defendant based on a technicality. On the other hand, as pointed out by the Court in Tanner, the four year statute of repose remains a powerful weapon in the hands of a defendant and is an absolute bar for dilatory plaintiffs.
In 1992, the Florida Supreme Court addressed the application of the four year statute of repose in Kush v. Lloyd, 616 So.2d 415 (Fla.1992). The plaintiffs were the parents of successive children born with significant deformities. When the first child was born the physicians allegedly misinformed the parents about the cause of his deformities, telling the parents their baby suffered an accident of nature and not a genetic deformity, and that it was safe to have a second child. Approximately nine years after the negligent diagnosis of the cause of the deformity to the first child, the plaintiffs had a second child who was also significantly deformed. They had him tested and only then learned the defendants had given them erroneous information about the cause of the injuries to the first child. The parents brought suit alleging wrongful birth and wrongful life(15) damages resulting from the birth of the second child. The Third District Court of Appeal had determined that strictly applying the four year statute of repose to these facts would cut off the plaintiffs' access to the courts before their cause of action even accrued. The damages did not occur until the second child was born, nine years after the act of negligence. The District Court felt this violated the plaintiffs' right of access to the courts.(16) The Supreme Court reversed, in a majority opinion that found the four year statute of repose constitutional even though it prevented a cause of action from being pursued before the cause of action had even accrued, or was known to the injured person.(17)
Thus, plaintiff's knowledge, and whether the tort is even complete, has been ruled irrelevant under the statute of repose. This is a harsh rule for the hapless plaintiff who finds himself without a legal remedy before he even knows, or has any reason to know, he or his family member has been harmed by the negligence of another.
Part 1 Part 2 Footnotes
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