If you are reading this article, you may already know that the statute of limitations is the period of time within which a lawsuit must be filed. If a lawsuit is not filed within the period prescribed by the applicable statute of limitations, it is invalid and will be dismissed.
The statute of limitations for medical malpractice in Florida is two years from the discovery of the incident. This means that a medical malpractice lawsuit must be filed within two years of discovering that medical malpractice occurred. The statute of limitations for medical malpractice cases is much shorter than the four-year statute of limitations that applies to other types of personal injury cases like car accidents and slip and falls in Florida. Florida lawmakers have made significant efforts to shield medical professionals from liability, and the very short medical malpractice statute of limitations is a very clear example of their success.
What is the Statute of Limitations for Medical Malpractice Lawsuits in Florida?
The victim of medical malpractice has 2 years from the date of the discovery of the medical malpractice to file a lawsuit so long as the lawsuit is filed within 4 years of the date when the medical malpractice occurred. However, some exceptions increase this time frame when the victim is a minor or the alleged medical malpractice involves fraud, concealment or intentional misrepresentation, which are explored further in this article.
Unlike with an ordinary personal injury case involving a car accident or a slip and fall, where the negligence of the wrongdoer is immediately apparent, identifying negligence in the medical context is often much more complex. Most malpractice victims do not know that they are victims of malpractice until months or even years after the negligence has occurred. For this reason, the statute of limitations allows victims to file a lawsuit within 2 years of the discovery of the malpractice.
The truth is that most instances of medical malpractice do not cause the patient permanent injury and damage. After all, a viable medical malpractice case requires that the victim suffered actual permanent or life-long damages. For this reason, many medical professionals may not inform their patients about their errors. Rather, the doctor or hospital will wait to see if their error causes the patient harm before they either admit to making a mistake or prepare to deny and defend their actions.
At What Point is the Medical Malpractice Considered Discovered?
There are rare instances where medical malpractice is immediate and apparent. For example, if a patient undergoes a surgical amputation of her left index finger but wakes up to find her right index finger is missing—the malpractice is very apparent. The two-year statute of limitations will begin to run the moment the patient wakes up and realizes the surgeon amputated the wrong finger. The patient will have 24 months (2 years) to file a lawsuit from the date when she wakes up and realizes the surgeon amputated the wrong finger.
However, most instances of malpractice are not so apparent. Sometimes medical malpractice can only be discovered with the exercise of due diligence by a subsequent medical provider. Take, for example, a patient who undergoes a routine breast augmentation. She recovers from the surgery perfectly fine but starts to experience severe pain, high fevers, and bloating six months after the surgery. She visits the emergency room one day and explains her symptoms and medical history to the attending emergency room doctor. The attending physician requests that she undergo an MRI of her chest. The MRI reveals that there is a scalpel inside of her body. The only logical conclusion is that the scalpel was forgotten inside of her during her breast augmentation. In this instance, the 2-year statute of limitations will likely begin to run the day the attending physician discovered the scalpel. However, she will be barred from filing a lawsuit if more than 4 years has gone by since the date of the malpractice incident (the date of her surgery) unless it can be proven that the medical provider engaged in fraud, concealment, or intentional misrepresentation of facts that prevented her from discovering the malpractice.
Medical Malpractice Involving Intentional Fraud or Concealment
If it can be shown that the medical provider engaged in fraud, concealment, or intentionally misrepresented facts that prevented the patient from discovering the medical malpractice, the 2-year statute of limitations starts from the time that the malpractice is discovered or should have been discovered. However, the medical malpractice lawsuit must be filed within 7 years of the date of the alleged malpractice unless the victim is minor and the lawsuit is filed prior to or on the child’s eighth birthday.
If for example, a patient by the name of John Doe discovers that medical malpractice was committed upon him 8 years ago, he will be barred from filing a lawsuit no matter how egregious the medical provider’s fraudulent conduct was.
Petition for 90-day Extension of the Statute of Limitations to Allow Reasonable Investigation
Fla. Stat. Ann. §766.104(2) allows the victim of medical malpractice to petition the clerk of court where the lawsuit will be filed to grant a 90-day extension of the statute of limitations. The filing of the petition for extension effectively extends the statute of limitations by 90 days. This extra time is crucial in many instances.
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