The injuries one sustains as a result of South Florida medical malpractice may last forever – but the time window in which you must initiate legal action does not.
As our Palm Beach medical malpractice attorneys can explain, there is generally a two-year statute of limitations for Florida medical malpractice claims. Generally, if you do not file your lawsuit within this window, your claim may be time-barred. These limits are set forth in F.S. 95.11(4)(b).
Although it’s true that often these cases are resolved through settlement negotiation, they are more complex than other types of personal injury claims. They require expert witnesses, extensive evidence, and a great deal of preparation. It’s often necessary to file a lawsuit just to preserve the claim so that we can continue negotiations. Settlements can often be beneficial to claimants because they can lead to faster resolutions and save the time/expense/emotional toll of a trial. Still, it’s important when hiring a Florida medical malpractice lawyer that you choose one with extensive experience, a track record of success in similar cases, and who is unafraid to take a case all the way to trial if necessary.
Note that the statute of limitations varies from state-to-state, so if you recently moved here from elsewhere, the time limits and requirements were probably different.
Are There Any Exceptions to the Two-Year Limit?
There are exceptions to the two-year statute of limitations for Florida medical malpractice claims, but they are limited in scope.
The clock starts ticking usually on the date of the incident. However, it might not start until the date you discovered or should have discovered the incident through the exercise of due diligence. So perhaps you were harmed by medical malpractice, but you didn’t know – and couldn’t have known – that was the cause right away. In those situations, the court will ask at what point you reasonably should have become aware there was an issue.
Despite this, there is a hard stop of four years from the date the incident occurred. This is referred to as the statute of repose. So let’s say you don’t discover your injuries or that the source of your injuries was medical malpractice until three years after it happened. In that situation, you would have just one year in which to file your claim.
To file any Florida medical malpractice case beyond four years, the fact pattern needs to reflect one of the following situations:
- The claim is being brought on behalf of a minor on or before the child turns eight.
- Fraud, concealment, or intentional misrepresentation of fact. If the doctor or hospital tried to cover up what happened, you have an additional two years from the date the harm/source was discovered or should have been discovered. Even then, you have no more than 7 years from the date of the incident. That 7-year limit can only be relaxed if the claim is being brought on behalf of a minor before the child turns eight.
It’s worth noting that the “accrual of action” in medical malpractice cases has been highly contested in both Florida appellate courts and the Florida Supreme Court. This is yet another reason why working with an experienced injury lawyer is so important.
What are the Pre-Lawsuit Requirements
Florida imposes a lot of duties on medical malpractice claimants before they’re even allowed to file – which is why that two-year window might seem like a long time, but sometimes isn’t enough.
As noted by the Florida Bar Association, the first step is to conduct a presuit investigation to determine which defendants are liable for negligence as healthcare providers. During this time, a petition is made to the relevant court to ensure compliance with the statute of limitations, and the case is given an automatic 90-day extension. During this time, a specific defendant doesn’t necessarily need to be named – though plaintiff lawyers are encouraged at this point to name anyone who might later be identified as a defendant. This window of time is intended to promote settlement negotiations and – hopefully, in the court’s view – avoid the time/expense of a lawsuit.
From there, plaintiffs must file a notice of intent to initiate a lawsuit. There’s a 90-day window for the defendant’s insurer(s) to investigate, and then engage in good faith negotiations. There’s discovery that happens on both sides.
If the defense rejects the plaintiff’s claim, the plaintiff has 60 days to file a lawsuit.
The plaintiff needs to have an expert witness willing to testify on their behalf their professional opinion that the harm suffered was the result of medical malpractice.
Bottom line: Medical malpractice cases are more complicated than your “typical” car accident or slip-and-fall. A great deal of time and effort must go into ensuring any case that is brought is meritorious and viable. Hiring a Palm Beach medical malpractice attorney with extensive experience should be a top priority.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
FLORIDA MEDICAL MALPRACTICE AND THE STATUTE OF LIMITATIONS, August 2003, Florida Bar Journal
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