Send vs. Receive: Another Layer of Protection for Medical Malpractice Defendants?

Another Layer of Protection for Medical Malpractice Defendants

In Florida, medical malpractice actions differ from other negligence-based actions in a significant way: they’re subject to an “uncommonly complex and unique” statutory framework made up of stringent pre-suit requirements. Juxtaposed against these requirements are the (relatively limited) 2-year statute of limitations and 4-year statute of repose. The combined effect is that healthcare providers are protected “in a way no other class of defendants is protected.” And one Florida District Court of Appeal has taken this protection one step further.

For most negligence-based actions, the defendant learns of the plaintiff’s claim upon being served with the lawsuit. Well, not so for a physician in a medical malpractice action; he gets a heads up. Indeed, before a plaintiff can sue a physician, she must not only notify the physician that she plans to sue him, she must also show that there are reasonable grounds for her belief that he was negligent in treating her. These reasonable grounds must be set forth in a corroborating affidavit signed by an appropriate expert.

This heads up is known as a notice of intent to initiate litigation. The statute requires the plaintiff to “serve” the notice on the defendant physician before the statute of limitations (“SOL”) expires (refer to our last post for more on the SOL). Under Florida rules, service of a document is generally completed when the document is sent, as opposed to when it’s received. Well, not so with a notice of intent – at least in the jurisdiction of the Second District Court of Appeal (“DCA”).

In 2016, the Second DCA ruled that, in order to comply with the statute, sending the notice of intent to the defendant prior to the expiration of the SOL wasn’t enough; rather, the defendant had to receive the notice before the SOL expired. By ruling this way, the Second DCA added one last layer of protection (albeit a thin one) for defendants in medical malpractice actions.

And the Second DCA ruled this way despite that other DCAs had already ruled differently, thus creating a conflict among Florida appellate courts. Indeed, the Fourth DCA in 1992 and the Fifth DCA in 2013 ruled that, in order to comply with the statute, the plaintiff need only send the notice before the expiration of the SOL. In other words, the defendant’s receipt of the notice after the SOL expired didn’t warrant dismissal of the plaintiff’s action.

The Second DCA had an opportunity to certify this conflict with the Fourth and Fifth DCAs in 2016 but declined to do so. Fortunately, when it was recently presented with the same opportunity, it took advantage. In July 2020, in a case with facts identical to those of the 2016 case, the Second DCA ruled in line with its precedent but also certified the conflict to the Florida Supreme Court. If it accepts jurisdiction, the Florida Supreme Court will have to decide what’s more important: defendants’ protection from barely untimely claims or plaintiffs’ access to the courts.

In the meantime, if you’re preparing a notice of intent to initiate litigation, and you need a corroborating affidavit, contact Global Litigation Consultants. We can help you locate, vet, and retain an appropriate expert so that you can check this item off your list with ease.

Disclaimer: The information provided through these blog posts does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available through these blog posts are for general informational purposes only.

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