Why the Medical Malpractice Statute of Limitations Can Leave You S-O-L

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Under Section 95.11, Florida Statutes, each cause of action has its own statute of limitations (“SOL”). Some are as short as 1 year; one is as long as 20 years; and the most common are 4 and 5 years. For medical malpractice claims, the SOL is on the shorter end at 2 years. At first glance, 2 years may seem like plenty of time. But when your client must jump through multiple hoops before she can file an action, 2 years can fly by. And if time runs out before she clears all of the hoops, she could be S-O-L.

The general rule is that the 2-year SOL begins to run on the date that the malpractice occurs. This rule applies to those situations where the malpractice is readily apparent from on the injury alone. For example, where the plaintiff was paralyzed following a myelogram (a diagnostic procedure where dye is injected into the spinal column), the SOL began to run the day after the myelogram was performed.

However, as with most legal rules, there’s an important exception: if the malpractice isn’t evident from the injury itself, the SOL begins to run not on the date that the malpractice occurs, but on the date that the plaintiff discovers, or should discover, the malpractice. For example, where the plaintiff developed foot drop following a total hip replacement, the SOL didn’t begin to run until 5 months after the procedure, when he realized the foot drop wouldn’t resolve with therapy.

But there’s a caveat to this exception. It’s called the statute of repose, and it means that a medical malpractice action must be filed within 4 years of the date that the malpractice occurs, regardless of when it’s discovered. Period. End stop. No ifs, ands, or buts.

Just kidding. There’s one final caveat: if the defendant physician engages in fraud, concealment, or intentional misrepresentation which prevents the plaintiff’s discovery of the malpractice, then the statute of repose can be extended up to 3 years.

On top of this, there are also tolling periods and extensions that may apply to elongate your client’s SOL. But we’re going stay out of those weeds (for now).

As you can see, determining the start and end dates of the SOL is a fact intensive process. But it’s important that it’s done as early as possible to ensure that your client clears all of the pre-suit hoops in time. If she doesn’t, her lawsuit will be subject to dismissal.

And even if your client does clear all of the hoops before time runs out, she may not be out of the woods; she’ll still face dismissal if she fails to comply with the other requirements of Chapter 766, Florida Statutes, like submitting a corroborating affidavit signed by an appropriate expert. And then, if the SOL expires after her lawsuit is filed but before it’s dismissed, the dismissal will be with prejudice, and your client will truly be S-O-L.

If there’s a SOL expiration date sneaking up on you (and even if there’s not), Global Litigation Consultants is here to help! We offer medical record retrieval, expert selection, and other services so that you and your client can jump through those pre-suit hoops in time.

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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