What Is The Statute of Limitations For Medical Malpractice In Florida?
When we go to the doctor, we trust that we’ll have proper care and treatment for our ailments. Doctors have a responsibility to provide a certain level of care. If they fail to provide that level of care, and you are harmed as a result, you could have grounds to file a medical malpractice lawsuit. However, you must act fast if you wish to file a lawsuit. Florida’s statute of limitations for medical malpractice cases allows a two-year period to file a lawsuit against the healthcare provider that harmed you. If you don’t file your lawsuit before this deadline passes, you risk forfeiting your right to sue.
A Florida medical malpractice lawyer can help ensure that all filings and motions for your case are filed correctly and on time. Here’s what you need to know about Florida law regarding medical negligence and the malpractice statute of limitations.
What Is the Discovery Rule for Medical Malpractice in Florida?
In Florida, a plaintiff has two years from the date they realize that a medical error occurred to file a lawsuit. Suppose the injured party doesn’t discover the injury immediately after it occurred due to the “discovery rule” in Florida. In that case, they have two years from the date they discovered or reasonably should have discovered the injury to file suit.
Medical malpractice victims may not realize they’ve come to harm right away. For example, if a tool was left inside someone after surgery, they may not notice it until they start having complications days or weeks later. Or perhaps an error during labor and delivery resulted in a birth injury. The child’s parents may not realize the injury occurred until months or years after the birth. The discovery rule extends the statute of limitations in cases when injuries are not immediately apparent.
The discovery rule can also come into play in cases of medical misdiagnosis. For example, suppose someone goes to the doctor with flu-like symptoms. The doctor says it’s the flu, so they don’t run extra tests or scans to rule out other conditions with similar symptoms. It turns out that the person actually has cancer, and the flu-like symptoms they reported should have indicated to the doctor that they were in the early stages of the disease. A couple of years later, the patient finds out that the “flu” was actually cancer. They could have grounds to sue, and the discovery rule allows an extension of the statute of limitations in such situations.
What Is the Statute of Repose?
Another consideration for Florida medical malpractice lawsuits is the statute of repose. It states that unless there is fraud, concealment, or intentional misrepresentation, a healthcare facility or provider may not be sued for malpractice more than four years after the incident.
That means that you can’t sue the healthcare provider if you didn’t catch the harm done by malpractice within four years, even if there is no way you could have reasonably known about it. However, you could sue the provider if you and your lawyer can prove that the healthcare provider committed fraud or misrepresentation and you were harmed because of it. This might be the case if, for example, the doctor altered your records or the healthcare facility covered up malpractice.
You can see this can quickly get contentious. That’s why it’s so important to work with a lawyer who deeply understands the state’s laws regarding medical malpractice cases.
If you can prove fraud or concealment happened, then the statutory period for filing your lawsuit is extended to seven years.
Florida’s Statute of Repose for Children
Florida law provides special consideration for filing medical malpractice suits on behalf of very young children. If a young child is harmed by medical malpractice, the statute of repose will extend until the child’s eighth birthday.
The Florida statute of repose for children often comes up in birth injury cases. For example, a baby may suffer oxygen deprivation during labor and delivery. This causes brain damage, but the parents may not discover the extent of the injury for a couple of years until developmental issues begin to become apparent. It may be even longer before the parents can connect the child’s issues to medical errors during delivery.
What Happens if the Deadline Set by the Statute of Limitations Expires?
If the statutory deadline expires, there’s a very good chance that a judge will dismiss your case. Your lawyer may make an argument that the discovery rule applies. Perhaps your lawyer found evidence that the doctor or healthcare facility covered up malpractice. They may submit a motion to have your case heard under the statute of repose based on the fraud or concealment.
Florida’s Deadline to Investigate Medical Malpractice
When your attorney files a medical malpractice lawsuit, they must include a certificate attesting that they have a good faith belief that malpractice happened. The certificate says that the lawyer investigated your situation and believes there are legal grounds to sue for malpractice.
In some cases, the case details could be in a gray area. If your attorney needs more time to investigate, then they could petition for a 90-day extension of the statute of limitations to gather more evidence.
Once your lawyer completes their investigation, they must serve the doctor or healthcare provider (the defendant) with a notice of your intention to sue. When the defendant receives your notice, they then have 90 days to review your claim and respond. During this time, the statute of limitations clock is paused or “tolled.” You cannot file your lawsuit until after the defendant’s 90 days have passed.
How an Experienced Florida Medical Malpractice Lawyer in Florida Can Help You
Do you think you have a case for medical malpractice? Has your health suffered because you didn’t receive proper care from your physician, other healthcare professional, or facility? We can help. Contact Schuler, Weisser, Zoeller, Overbeck & Baxter P.A. today at 561.689.8180 for a free consultation about your medical malpractice lawsuit.