Medical malpractice suits are a common part of our everyday world. When we put our trust in medical professionals to keep us and our loved ones safe, occasionally that trust is broken and a person is injured at the hands of a medical professional who was supposed to help. A medical malpractice lawsuit can be long and complicated process that causes stress and confusion for the victims and their families. While the process in general is complicated, a Florida appeals court set down a ruling earlier last month clarifying one of many grey areas in medical malpractice law.

Problem with the Notice Rule

When a party decides that they want to sue another party, the former must notify the latter of the intent to do so. This notice of intent must be done within a certain time from the date of the accident—within the statute of limitations.

A controversy regarding the rule of notice arose after a medical malpractice decision was reversed when an anesthesia provider argued that because they had not been timely served a notice of intent to litigate (unlike the surgeon and the hospital) before the statute of limitations ran, the plaintiffs should not be able to toll the statute, and the case should be thrown out.

Statutory Tolling

Statutes of limitations were created to prevent claims from being brought in an untimely manner, such as after evidence has been lost or so much time has passed that witnesses may no longer be available or their memory may not be as clear. While statutes of limitations are generally strict and followed closely by the courts, in certain cases a plaintiff may prevent the dismissal of their case due to untimeliness by asking to toll the statute. Tolling the statute basically allows the time period under the statute of limitations to be temporarily suspended until some sort of specified event takes place.

There are a variety of events or circumstances when the court will allow the statute to be tolled, many times due to some sort of medical circumstance that prevents the party from having the legal capacity to pursue the litigation. It is important to note that ignorance of the cause of action is generally not a circumstance where the courts will allow the statute to toll. This is especially true if the existence of the cause could have been learned by simple inquiry or diligence by the party.

Under Florida statutes, a medical malpractice suit must be brought either within two years from the time the accident occurred or within two years from the time the injury is discovered or should have been discovered. Florida also requires that a party must send notice of their intent to sue to any prospective defendant in that case. No suit may be filed for 90 days after that notice of intent is filed. Florida statute also requires that during that 90-day period, the statute of limitation is tolled as to all potential defendants, and may be extended beyond that upon stipulation of all parties.

Clarifying the Notice Rules

After the case with the anesthesia providers was brought, a Florida appeals court ruled that the state law regarding medical malpractice lawsuits and statutory tolling applies to all potential defendants once the notice of intent to initiate litigation is timely served. The ruling clarifies that this also applies to prospective defendants that have not yet been served a notice of intent to sue.

The issue regarding statute was the fact that both the term “prospective defendant” and “potential defendant” were used and that it did not properly clarify what these meant. The courts ultimately determined that the terms were used interchangeably.

Make Sure to Exercise Your Rights

The time frame in which a person has to bring a lawsuit in a medical malpractice suit is a strict window that must be followed. If you or someone you know has been a victim of a medical malpractice injury, it is important to contact a professional to ensure that your rights are preserved and you are able to timely file your suit. From our office in Brandon, we help clients in Tampa, New Tampa, Plant City, throughout east Hillsborough County and the state of Florida. Contact Reed & Reed for a free consultation.