Florida medical malpractice and the statute of limitations: an overview of select statutory provisions and case law governing medical malpractice litigation.

• Author: Osherow, Mark R.

A full understanding of statute of limitations issues is essential to both case selection and analysis and the formal prosecution of each meritorious medical negligence claim. As a practical matter, the practitioner is well advised to select the earliest possible date for computation of the two-year statute of limitations which will control in most cases, i.e., the date the error or omission occurred. Unfortunately, meritorious cases, for many reasons, at least on occasion, will not be presented to counsel until after two years from the date of the actions giving rise to the case, or under circumstances where, viewing the case in the most cautious light, the statute runs the risk of running shortly.

This article will consider the benefits and risks of immediate action to preserve claims while counsel, suspicious that the case has merit, requires additional time for consideration and investigation. A clear understanding of these issues can enable counsel to take on difficult cases (occasionally meritorious ones with a large upside that numerous other attorneys have rejected), without substantial risk (other than that generally in contingent cases). Counsel should promptly reject those where the risk is clearly outweighed by the reward, or where the chance of obtaining the required corroborating medical affidavit (1) is unlikely to be accomplished within the limitations period.

Occasionally, some of the most difficult scenarios are posed to counsel where retention is accepted (sometimes after the case has been rejected elsewhere) in what later proves a marginal case, or one where no reasonable view of the facts after further analysis can lead to a conclusion that the standard of care has been breached, or if it has, that the prospective plaintiff's injuries or damages are a proximate result of that breach. In these circumstances, the case should be formally rejected, in writing, at the earliest opportunity. Often, the analysis that has lead to the conclusion should be explained to the client personally. These meetings, while time consuming, can save counsel from considerable annoyance later.

Where the limitations period is approaching rapidly, a face-to-face discussion with the client is highly advisable both to preserve the relationship and to discuss options. If the upside potential is enormous and the risk worth your time, you must be fully prepared to proceed immediately, and have a prospective expert lined up to review the case. Do not consider these difficult liability or damages cases unless your calender is free and you are prepared to devote the time necessary on an immediate basis. Even then, unless there are clear overriding reasons to proceed, cases like this must be viewed with extreme caution. Consideration should be given as well to a formal agreement outlining what counsel is willing to do and the client's risks. On occasion, counsel may find that a very promising matter has crossed his or her desk--but usually you will just be the last of many counsel who have rejected the case. Avoid this precarious position. If there is not a clear understanding, certainly the file should not even remain in counsel's office following the initial consultation and a formal rejection should be out that same day. As discussed below, a full understanding of the limitations period, combined with the other considerations in a medical malpractice case, will enable counsel to go forth unafraid of the risks inherent in these cases, and to act accordingly to protect the client's interests in a timely manner.

Indeed, understanding the statute of limitations issues discussed in this article, combined with the practitioner's independent research and consideration, will provide most counsel with the tools to make a fully educated determination and not to simply reject a case out of apprehension (as prior counsel may have done). While beyond the scope of this article, finding an esteemed medical provider to prepare the necessary corroborating medical affidavit or the opinion necessary to properly reject the case for lack of merit as to liability or damages, or both, may, as well, be close at hand.

The Medical Negligence Statute of Limitations

The strict procedural requirements in the Florida Comprehensive Medical Malpractice Reform Act ("the act") (2) reflects a legislative determination to curtail frivolous claims, promote settlement, and reduce the high cost of medical malpractice insurance. (3) To this end, the two-year statute of limitations Serves as a potential bar to causes of action by claimants of medical malpractice. (4)

Under Florida law, ordinary negligence causes of action are subject to a four-year statute of limitations. (5) However, following an increasing trend among other states, Florida has codified a two-year statute of limitations for medical malpractice causes of action, with a four-year statute of repose, and a seven-year maximum cap for cases that involve fraud, concealment, or intentional misrepresentation by a prospective defendant health care provider. (6) The only exception to this is when the claimant is a minor age eight or younger, in which case the seven-year period does not bar an action brought on behalf of a minor on or before the child's eighth birthday. (7)

Is it Medical Malpractice?

Pivotal as to whether the act applies is whether the case is even one of medical malpractice, thus warranting the stricter procedural rules. (8) This requires a determination of whether the cause of action arose from the rendering of, or failure to render, medical care or services by a health care provider. (9) If the prospective defendant is a health care provider, certain presuit requirements are triggered under the act such as a presuit investigation (10) and presuit notice. (11) The statutory classification under F.S. [section] 766.101(2)(b) lists "health care providers" to include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, or hospitals or ambulatory surgical centers. Although the act does not define "prospective defendants" to whom presuit notice must be given, that term refers to defendants in medical malpractice actions who are health care providers or who, although not expressly included within that class, are vicariously liable for acts of health care providers. (12)

Pre-suit Requirements: Investigation and Notice

The first step for counsel facing a potential medical malpractice claim is to conduct a presuit investigation. (13) The purpose of the presuit investigation is to determine which defendants are truly liable for negligence as health care providers. (14) During this phase, petition should be made to the relevant court and for statute of limitations purposes, an automatic 90-day extension will be granted during this presuit investigation. (15) The petition for the 90-day extension need not specifically name a prospective defendant. (16) Counsel otherwise may be encouraged to name every potential defendant whether remotely meritorious or not, and then drop those clearly not indicated or keep them, in hope that some liability will be found in effectively advocating for the client. The 90-day period is also intended to encourage settlement prior to initiating litigation if possible. (17)

Once the presuit investigation is underway, counsel for the plaintiff must give each prospective defendant notice of intent to initiate litigation before filing suit in court. (18) Once the notice of intent is mailed to a potential defendant, no lawsuit may be filed during this 90-day period. (19) During this presuit investigation period, the defendant's insurer also must investigate and determine any liability of its insured. (20) Parties must conduct informal discovery as well and cooperate fully and in good faith with their insurer. (21) If either party fails to follow the presuit, notice, investigation, and discovery procedures, the court may dismiss any claims or defenses. (22)

Response and Cooperation

Before a potential defendant can reject a claim for medical negligence, the defendant or its insurer or self-insurer must also conduct an investigation. (23) The defendant who believes there are no reasonable grounds for a claim of medical malpractice must also submit a written verified medical opinion, corroborating such a position and mailed with the notice of rejection. (24) A necessary step during presuit investigation is the review of medical records, which often are the mainstay in determining potential liability at this early stage. A copy of all relevant medical records must be provided to either party requesting such documents or their respective attorney at a reasonable charge within 10 business days. (25)

Negotiations and Tolling of Statute of Limitations

For statute of limitations purposes, while negotiating parties may attempt to enter into stipulations for extending the limitations period (authorized by F.S. [section] 766.106 and Fla. R. Civ. P. 1.650), once a claimant receives a rejection of claim letter from the defendant, that claimant is required to file suit within 60 days of receipt of that rejection. (26) Taking as an example the facts from Mason v. Bisogno, 633 So. 2d 464 (Fla. 5th DCA 1994), the statute of limitations began to run on November 20, 1988, upon the plaintiff's expressed lack of confidence in her treating doctor following a colonoscopy with resulting peritonitis. The notice of intent letter was sent to the defendant on November 13, 1990 (seven days before the expiration of the limitations period). This began the 90-day presuit investigation phase by law and was set to expire on February 11, 1991, but was extended by mutual agreement to April 30, 1991. On April 25, 1991, the rejection of claim letter with a physician's affidavit was received by the plaintiff from the defendant doctor and suit was filed on June 27, 1991. The trial court found for the defendant and the appellate court affirmed, rejecting...