The Reasonableness Standard for Triggering the Statute of Limitations for Medical Malpractice Suits in the State of Florida
At first blush, Florida’s statute of limitations for bringing a medical malpractice suit appears to be quite straight forward. The Florida Statute which governs medical malpractice claims states the following:
“An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.” Section 95.11(4)(b), Florida Statutes.
This particular time frame imposed by the Florida Legislature is considerably shorter than the statute of limitations for bringing actions for personal injuries caused, for example, by motor vehicle accidents, dog bites, and slip and fall accidents. For these "non-med mal" negligence cases, the statute of limitations under Florida law is four (4) years.
The medical malpractice statute of limitations is not as cut and dry as it may seem. For example, in the case of motor vehicle accident, the date and time of the event which caused the the plaintiff’s injuries is documented, generally through an accident report form prepared by police officer called to the scene of the accident. Also, in many cases, the injured plaintiff will have been transported by an ambulance to a hospital.
In medical malpractice cases, the start date from which the statute of limitations is calculated may well be open to interpretation. In the case of a malpractice matter, the negligence may not be discovered for a considerable time after the negligence which gave rise to the malpractice occurred. For example, the ramifications of a missed cancer diagnosis may not be known for years. Also, pain is often the result of surgery. When should a patient be required to know that certain pain manifestations following surgery were a possible cause of medical malpractice? The bottom line is that for medical malpractice cases, the start date for assessing the statute of limitations is not always as easy to pin down as it may seem.
The most recent Florida case to deal with the issue of the medical malpractice statute of limitations is Cohen v. Cooper, a case decided by the Fourth District Court of Appeal on October 28, 2009. No. 4D07-4056. In Cohen, the Plaintiff appealed the lower court judge’s ruling that her medical malpractice claim for “eye” complications resulting from cosmetic surgery was barred by the statute of limitations for medical malpractice lawsuits and that the defendant was therefore entitled to final summary judgment as a matter or law. The plaintiff appealed..
In arriving at a decision favorable to the plaintiff, the Cohen court discussed the numerous Florida cases which have held inter alia that the “determination of timeliness under the statute of limitations is fact specific and within the province of the jury, not the trial judge.” For example, in Tanner v. Hartog, 618 S0. 2d 177, 181 (Fla. 1993), the Florida Supreme Court held that “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical practice.” The Tanner court was concerned over situations where the injured party became aware of a detrimental medical result after treatment by a medical practitioner, but did not have enough information available to ascertain that there was a reasonable possibility that the injury was caused by medical malpractice.
In Cunningham v. Lowery, 724 So. 2d 176, 178 (Fla. 5th DCA 1999), the court held that the plaintiff’s awareness of a medical condition “is not the same thing as knowledge that there was a reasonable possibility” that the plaintiff was injured through the malpractice of a doctor. The Cunningham court further opined that the statute’s requirement of “due diligence” does not require that courts hold a plaintiff struggling with the fact of a crippling or horrifying illness to undertake sophisticated medical analysis. Furthermore, the defendant-doctor in Cunningham continued to treat the plaintiff for a bacterial infection which was diagnosed following spinal surgery performed by that same doctor. The Cunningham court found this fact troublesome, and held that the continued treatment of the injured plaintiff by the defendant “embodies an estoppel concept; Medical providers or their agents who convince patients than untoward medical event was ‘natural’ and non-negligent will rarely be permitted to deny that same representation is correct for purposes of the statute of limitations.” Cohen citing Cunningham, 724 So. 2d at 180.
In 2008, the Florida Third District Court of Appeal held that “pain after a medical procedure, standing alone, does not trigger the statute of limitations and creates a question of fact on the issue of notice [of intent to initiate medical malpractice litigation]." Cohen citing Gonzalez v. Tracy, 994 So. 2d 402, 405 (Fla. 3d 2008).
In 2008, the Fifth District Court of Appeal held that [s]imply suspecting wrongdoing is not enough” when determining just when clock starts ticking. Thomas v. Lopez, 982 So. 2d 64, 68 (Fla. 5th DCA 2008). The Thomas court concluded that “[t]he determination of when a person knew or should reasonably have known with the exercise of due diligence of the possibility of medical negligence is generally a question of fact.”
In the recent Cohen case, the court emphasized that, as in the cited Cunningham case, the plaintiff continued to see her plastic surgeon after the onset of her eye problem and stated that “[a]s a result of [the defendant doctor’s] assurances that [the plaintiff’s] eye condition would improve, [the defendant doctor] cannot now claim that [the plaintiff] should have known three days after the initial surgery that her pain was the result of his negligence.” Moreover, the Cohen court pointed that the conflicting evidence presented by the parties concerning just when the plaintiff should have reasonably known her eye pain was the result of medical negligence was for the jury to evaluate, not the judge. The trial court had thus erred in granting final summary judgment to the defendant doctor.
The Cohen court opinion also reminds us that the moving party is entitled to a judgment as a matter of law only where there is no genuine issue of material fact and that “summary judgments should be cautiously granted in negligence and malpractice suits.” Cohen quoting Davis v. Green, 625 So. 2d 130, 131 (Fla. 4th DCA 1993).
The Cohen decision reiterates that, under Florida law, the determination of just when the plaintiff should have reasonably known that medical negligence was a possible cause of the injury is a question of fact for the jury. In addition, the opinion also emphasizes those medical providers who continue to treat a patient, perhaps in hopes of thwarting a claim against them for medical negligence, should not be later be able to assert that the plaintiff missed the “deadline” imposed by the statute of limitations for medical malpractice.
If you or a loved suspect that you have been the victim of medical negligence, you may wish to consult with an attorney to discuss your rights. When you consult with an attorney, be prepared to provide information on the specific dates you were treated by the medical provider(s) you allege to have committed medical negligence and how and when you came to believe that your symptoms were the result of medical negligence. Such information will be necessary to help your attorney make a preliminary assessment as to whether your claim should be within the two year statute of limitations based on Florida case law and the facts surrounding your particular situation.
