Florida Medical Malpractice and the Statute of Limitations
by Mark R. Osherow

Page 38

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 affidavit¹ 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 investigation¹⁰ and presuit notice.¹¹ The statutory classification under F.S. §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. §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 plaintiff’s arguments and finding that suit was not filed within 60 days of receiving the rejection letter since there were only seven days left before the statute of limitations ran out, or in other words by June 24, 1991.²⁷

Consistent with the Florida Supreme Court decision in Boyd v. Becker, 627 So. 2d 481 (Fla. 1993), in Mason the Fifth District also reaffirmed that the correct method for computing the 90-day period tolled upon filing the notice of intent to initiate litigation, starts by counting when the notice is actually received. Both cases involved an alleged conflict between F.S. §766.106(3) and Fla. R. Civ. P. 1.650 (the medical malpractice presuit screening rule). While the court in Boyd found the conflict to be whether the 90-day period starts from the date notice was mailed or received, the rule was immediately amended to comport with the statutory language that the period begins upon receipt.²⁸ Expounding further on this point, in Mason the Fifth District refused to find any conflict with F.S. §766.106(3) and Fla. R. Civ. P. 1.650 as amended, finding instead that the plain and ordinary meaning of the statute and the rule was clear and must be read together.

Once negotiations have proven to be unsuccessful, parties should be allowed to file suit as soon as possible following the 90-day tolling period and once the claim has been rejected, there is no reason to toll the limitations period any longer. In Mason, the court stated that Rule 1.650 is clear on when the limitations period begins to run again, following two possible scenarios. Suit must be filed within 60 days or within the remainder of the statute of limitations after the notice of intent to initiate litigation is mailed, whichever is longer, upon the earliest of two events: 1) a written rejection of claim; or 2) the expiration of the 90-day presuit period. The court limited this holding to cases in which an extension pursuant to §766.106(4) was stipulated to, and held that “rejecting the claim” and “terminating negotiations” are the same for the purpose of restarting the statute of limitations.²⁹

Statute of Limitations/Repose Affected by Tolling Provisions

For purposes of the four-year statute of repose, a medical malpractice action is commenced when the plaintiff files for the automatic 90-day extension of the statute of limitations in order to conduct a reasonable investigation or when a notice of intent to initiate litigation is served.³⁰ In contrast to the statute of limitations, the statute of repose precludes a “right of action” versus “cause of action” after a specified time, which is measured from the incident of malpractice, rather than establishing a time period within which an action must be brought measured from a point in time when that cause of action accrued.³¹ The filing of the notice of intent to litigate a medical malpractice claim tolls the four-year statute of repose in addition to the two-year statute of limitations.³²

Once a claimant has sent the notice of intent to initiate a medical malpractice action and the 90-day presuit investigation is completed, that plaintiff has 60 days or the remainder of the statute of limitations period, whichever is greater, in which to bring the medical malpractice suit.³³ Note that the two-year statute of limitations for medical malpractice actions is suspended for 90 days after mailing of the notice of intent to initiate litigation, regardless of when the notice of intent was sent.³⁴ The automatic 90-day extension provided upon a petition to the clerk is an extension of time to be added to the limitations period, rather than a tolling period, and thus, the extension time period is to be tacked on to the end of the limitations period and does not run simultaneously with the separate 90-day tolling period upon mailing of notice of intent to initiate litigation.³⁵ This automatic 90-day extension to the limitations period for medical malpractice actions upon application to the clerk of court is also available regardless of whether a “reasonable investigation” of the claim had already occurred.³⁶

Under the above reasoning, the Florida Supreme Court held in Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000), that the claimant’s lawsuit was timely filed. The court in Hankey covered many aspects of the medical malpractice act and statute of limitations issues. It agreed with the Fifth District in noting that if the limitations period was suspended under the tolling provisions of §766.106(4), then the Hankeys’ complaint was timely filed. In that case, the limitations period began to run on December 6, 1994, and was scheduled to end on December 6, 1996. The notice of intent was filed on March 19, 1996, and suspended the limitations period for 90 days as of the date it was received by the defendants. Prior to a response by the defendants, the parties agreed to a 30-day extension, which continued to suspend the limitations period for another 30 days or until the defendants responded to the notice of intent.

By July 18, 1996, all the potential defendants had responded to the notice of intent, running the limitations period again. As of March 19, 1996, the date the notice of intent was served more than 60 days remained until the expiration date of the original limitations period (December 6, 1996). The Hankeys therefore were not entitled to any of the 60 days provided under §766.106(4) and when the limitations period began running again on July 18, it was set to expire on April 6, 1997.³⁷ However, the Hankeys had until July 5, 1997, in which to file suit because they had filed a petition with the clerk of the court for an automatic 90-day extension on November 20, 1996.³⁸ The suit in this case was timely filed on June 19, 1997.

Careful attention should be placed on the various extension provisions and how they may affect tolling of the statute of limitations.³⁹ For example, the Florida Supreme Court, affirming the ruling of the Second District,⁴⁰ in Hillsborough County Hospital Authority v. Coffaro, 829 So. 2d 862 (Fla. 2002), found that an extension of the statute of limitations obtained by petition to the clerk of court during the presuit screening period, was to be included as an additional extension when computing the time remaining for filing suit after receipt of notice that the negotiations were terminated. At issue was a dispute whether the 90-day tolling provision granted upon petition to the clerk and pursuant to F.S. §766.104(2) was included where an extension provision of 60 days pursuant to F.S. §766.106(4) is applicable. The court was called upon to decide whether the prior extension provision is provided in addition to other tolling provisions, under all circumstances, or whether the extension provision is the remainder of the statute of limitations period or 60 days, whichever is greater, in which to file suit.⁴¹

The court ruled in favor of allowing access to courts and sought to harmonize the extension and tolling provisions. The court found that for time computation periods, the 90-day “purchased” extension of the statute of limitations is separate and distinct from any other extension or tolling provision, as long as it is petitioned for within the limitations period. This is regardless of whether the extension of 60 days is considered a tolling or extension provision. Thus, the court determined that the 90-day purchased extension may be added to the allowed 60 days following the completion of the presuit investigation, in order to construe the statutes in a manner that favors access to the courts.⁴²

Accrual of a Medical Malpractice Case

Exactly when an action accrues has been a highly contested issue among the Florida Supreme Court and courts of appeal. The seminal case is Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976), in which the Florida Supreme Court held among other things that the statute of limitations in medical malpractice cases commences when either the plaintiff has notice of the negligent act giving rise to a cause of action or when the plaintiff has notice of the physical injury caused by the negligent act. Subsequent cases reaffirmed the Nardone principle with harsh results as a consequence in some cases.⁴³ The requirements of a prospective claimant’s “knowledge of injury” announced by the Nardone rule certainly gave defendants a superior advantage where plaintiffs brought an action after the statute of limitations period but within the repose period. Defendants could pick the earlier of the two alternatives to begin the running of the limitation period and bar causes of action that may have been meritorious while placing a super-knowledge burden on prospective plaintiffs. The effect of this rule can be seen as counterproductive and resulting in an actual increase in litigation, for it encourages people who may have any suspicion that their injury was caused by medical malpractice to run out and hire a lawyer or be barred from bringing any action at all. It also put patients in the precarious position of having to decipher what is and what is not medical negligence.

This hindsight knowledge of injury approach took a change of direction to a more logical and workable rule, when the Florida Supreme Court announced in Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993), that knowledge of injury must also be accompanied by knowledge of a reasonable possibility that the injury was caused by medical malpractice. In other words, the nature of the injury alone may in some cases communicate that it was caused by medical malpractice, but in cases where the injury may have likely been caused by natural causes, the limitations period does not begin to run until there is reason to believe it was caused by medical malpractice. The plaintiffs in Tanner, parents of a stillborn child, sued the delivering health care providers from a birth that took place on April 1, 1988. Their complaint alleged the doctors had examined the mother on March 31, 1988, and sent her to the hospital for testing the morning prior to birth of the stillborn infant. They alleged negligence on the part of the defendants and that the negligence was not known by the plaintiffs until December 29, 1989. The notice of intent to initiate litigation was filed February 12, 1990, and suit was filed August 1, 1990. The defendants moved for dismissal of the action as time barred and the trial court granted that motion which was affirmed by the appellate court, after finding that the period of limitations expired as of April 1, 1990, two years from the actual stillbirth.⁴⁴

The court discussed the Nardone line of cases relied on by the defendants and the lower appellate court’s attempts to grapple with and ameliorate the often harsh results a literal application of that rule had in latter cases, suggesting that all the elements of a negligence cause of action should be present before running of the limitations period. Of particular concern were cases where natural causes may be a likely cause making the Nardone rule counterintuitive to notions of fairness. Even the Second District, which rendered Nardone, later took issue with the results that case had on other medical malpractice cases. The Tanner court admitted that the new rule may make determining when the limitations period begins to run more difficult, but reasoned that the new rule was justified given the four-year statute of repose absent fraudulent concealment announced in Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992), placing a definitive cap on medical malpractice actions and the less burdensome knowledge of injury requirement for potential claimants.

Exactly when a claimant knew or was on notice of an invasion of legal rights in the medical malpractice scenario can present a fact question that precludes a granting of summary judgment against the claimant.⁴⁵ A health care provider’s diagnosis or alleged misdiagnosis is a frequently litigated issue. This contested issue can substantially affect a claimant’s knowledge of a reasonable possibility of medical negligence. For purposes of determining if a claimant had discovered medical negligence so as to begin the running of the limitations period, a misdiagnosis constitutes evidence that the claimant did not have the requisite knowledge that an injury was caused by medical negligence until that claimant received a correct diagnosis.⁴⁶

In some instances, counsel may face issues of a claimant’s capacity to satisfy the knowledge requirement of an injury and reasonable possibility of medical negligence. Take, for instance, the claimant who lapses into coma shortly after admission and treatment. This was the case in Stone v. Rosenthal, 665 So. 2d 276 (Fla. 4th DCA 1995), and the court held that due to the fact that the patient was comatose, he neither had notice of an injury nor knowledge that it might have been caused by malpractice so as to preclude summary judgment against him. Even though his wife had been appointed as an emergency guardian, that status did not impose a duty on her to file a malpractice claim until she stood in a representative capacity upon officially being appointed as a personal representative of the patient’s estate upon his death.⁴⁷ It should be noted that when a widow or widower brings suit, a material fact issue may be raised as to when the widow or widower knew that at the time the patient’s injury was diagnosed, a reasonable possibility existed that the defendant physician acted negligently.⁴⁸ Limitations issues aside, a claimant in a representative capacity must correctly plead the complaint and state a cause of action for medical malpractice so as not to be barred under defenses or motions to dismiss because of some alleged deficiency in the complaint.⁴⁹ A personal representative who brings a medical malpractice action must fully comply with all presuit procedures as well.⁵⁰ In general, a plaintiff must comply with presuit requirements if seeking to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in the statute defining health care providers.⁵¹

In other instances, the nature of the injury alone is of a kind that can be considered “immediately apparent” so as to communicate to the prospective claimant the possibility of medical negligence.⁵² For example, in Hazen v. Kaplan, 734 So. 2d 441 (Fla. 5th DCA 1999), the court held that a cause of action for medical malpractice accrued and the limitations period began to run when the patient visited his physician complaining of left shoulder pain and mentioning that he was paralyzed waist down from a myelogram. Although the claimant challenging the summary judgment entered against him relied on Tanner to argue that his injury was not the type that standing alone would indicate that medical malpractice had possibly occurred, the court citing to Tanner,⁵³ reiterated the proposition that the nature of the injury in some cases is sufficient to support the knowledge requirement and thus start the running of the limitations period notwithstanding the case in which the injury may have been a result of natural causes. This issue is necessarily fact specific and dependent on the individual circumstances of a given case. It also suggests that the Nardone rule (that the statute of limitations commences when the plaintiff has notice of the negligent act giving rise to a cause of action or when the plaintiff has notice of the physical injury caused by the negligent act) is still alive in some form. Note also that for purposes of constructive notice, when a health care provider is subject to statutory requirements designed to ensure that each patient is counseled about an adverse diagnostic test result for a condition that may not become symptomatic for years, the tested patient is not on constructive notice of the undisclosed test result merely because it has been filed in his medical records.⁵⁴

Subsequent case law has covered the issue of “immediately apparent” injuries and courts have ruled both ways.⁵⁵ Of particular interest are cases in which a claimant facing a barred medical malpractice action attempts to apply the “delayed discovery doctrine” so as to preserve a cause of action.⁵⁶ The Florida Supreme Court addressed this issue in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), and answered the certified question⁵⁷ in the affirmative. Although that case did not involve medical malpractice, in discussing this doctrine the court noted that it was not a novel principle of law and had been discussed in previous cases involving medical negligence.⁵⁸ The delayed discovery doctrine, however, may only be applied to the accrual of a cause of action and not to tolling the statute of limitations. Determining whether a cause of action is time-barred upon expiration of the statute of limitations may include an inquiry into both issues: 1) Did the cause of action accrue? and 2) Does a statutory tolling provision apply? Finally, the delayed discovery doctrine provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action. This last principle sounds strikingly akin to Nardone and a transgression from Tanner in which knowledge of the injury must also be accompanied by knowledge of a reasonable possibility that the injury was caused by medical malpractice. Either way, Tanner is still good law but it can be seen that its holding is not as broad as some may believe.

Conclusion

The medical malpractice act in Florida is both complex and evolving. Counsel handling a potential medical malpractice case must be familiar with the presuit requirements affecting the viability and strength of each case whether representing the claimant or health care provider. It is hoped that the above analysis demonstrates the need for careful attention to detail and how procedure can affect the substance of a cause or right of action in medical malpractice litigation. Given the rising battle among the states and nationally between plaintiff’s advocates and the insurance industry, Florida stands as a good example of an evolving system in search of balance and justice. At first impression the statute of limitations may seem like a simple calculation. However, it can be seen how in many cases it can become determinative of a given medical malpractice case. A full understanding of the statute of limitations and its relationship to other aspects of the Medical Malpractice Reform Act will enable counsel to handle these cases with confidence.

¹ Fla. Stat. §§766.104(1), 766.203(2) (2002)

² Fla. Stat. ch. 766.

³ Dean v. Vazquez ,786 So. 2d 637 (Fla. 4th D.C.A. 2001) (the intention of the legislature in enacting the statutory scheme for medical malpractice claims).

⁴ Fla. Stat. §95.11(4)(b) (2002).

⁵ Fla. Stat. §95.11(3) (2002).

⁶ Fla. Stat. §95.11(4)(b) (2002). ⁷ Fla. Stat. §95.11(4)(b) (2002).

⁸ Cf. Bell v. Indian River Memorial Hosp., 778 So. 2d 1030 (Fla. 4th D.C.A. 2001) (holding that parents’ action against hospital for loss or destruction of their deceased infant’s remains was not an action for “medical malpractice,” and thus action was not subject to medical malpractice statute of limitations; hospital personnel did not engage in any medical skill or judgment in disposition of infant’s remains and were only expected to perform ministerial act of transporting infant’s remains back to the parents following conclusion of autopsy).

⁹ O’Shea v. Phillips,746 So. 2d 1105 (Fla. 4th D.C.A. 1999) (citing J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945, 949 (Fla. 1994) and Fla. Stat. §§766.106(1)(a), 766.201-212 (1997)).

¹⁰ Fla. Stat. §766.104(1) (2002).

¹¹ Fla. Stat. §766.106 (2002)

¹² Weinstock v. Groth , 629 So. 2d 835 (Fla.1993) (holding that a psychologist was not a health care provider and thus the plaintiff patient was not required to give presuit notice under the act); cf. Preston v. Health Care and Retirement Corporation of America,785 So. 2d 570 (Fla. 4th D.C.A. 2001) (noting statutory amendments and holding that the malpractice act’s presuit requirements do not apply where the plaintiff alleges only that a nursing home violated a resident’s rights under ch. 400). Also, health maintenance organizations (HMOs) have begun to assert the failure to utilize the presuit requirements in an attempt to thwart claimant’s benefit cases. See Solomon v. Well Care HMO, Inc., 822 So. 2d 543 (Fla. 4th D.C.A. 2002) (reversing dismissal of the complaint where there were no allegations that the HMO was rendering medical care or services as required to invoke the application of the presuit notice requirements); Lane v. Health Options, Inc., 796 So. 2d 1234 (Fla. 4th D.C.A. 2001) (same); cf. Frappier v. Wishnov, 678 So. 2d 884, 887 (Fla. 4th D.C.A. 1996) (no federal preemption under ERISA of case against HMO where the complaint asserts “failing to provide, arrange for, or supervise qualified doctors to provide the actual medical treatment for plan participants”).

¹³ Fla. Stat. §766.203 (2002).

¹⁴ Fla. Stat. §§766.104(1) (2002), 766.203 (2002).

¹⁵ Fla. Stat. §§766.104(2).

¹⁶ Kagan v. Pollock, 638 So. 2d 151 (Fla. 1994). In Kagan v. Pollock,638 So. 2d 151 (Fla. 1994), the plaintiffs sent a notice of intent to initiate litigation on May 1, 1991, as required by Fla. Stat. §766.106(2). They named several defendants but had not included one physician. Two days later, the plaintiffs filed and were granted the 90-day extension of the statute of limitations regarding all the previously named defendants. The unnamed defendant finally received notice of intent on April 20, 1992, and the complaint was amended on May 11, 1992, to reflect this defendant’s inclusion in the lawsuit. As an affirmative defense, it was alleged that the amended complaint was filed after the statute of limitations period had expired and the lower court granted summary judgment for the defendant.

On reversal, the Fourth DCA found the plaintiff to have been aware of her injury since February of 1990 thus a strict reading of the statute of limitations would bar an action after February 20, 1992. However, considering that the plaintiffs were granted the 90-day extension, the court found the limitations period was tolled until May 20, 1992, thus negating the defendant’s statute of limitations defense. The court construed the statutory language narrowly and refused to read into the language a requirement that a defendant must be specifically named in the petition for the 90-day extension where it is not specifically provided for otherwise.

As Kagan illustrates, the 90-day presuit investigation period reflects a balancing for both sides and in favor of allowing a prospective plaintiff access to the court. A contrary result would leave the plaintiff in the precarious position of conducting an investigation only to find out a defendant that should have been named and wasn’t because of inadequate information, is now immune from suit. This holding is also consistent with promoting a curtailment of frivolous claims.

¹⁷ Fla. Stat. §766.201 (2002).

¹⁸ Fla. Stat. §766.106(2) (2002). See Novitsky v. Hards, 589 So. 2d 404 (Fla. 5th D.C.A. 1991)(letter of intent to sue sent by certified mail to dentist’s malpractice insurer was not letter of intent to sue under statute’s tolling provision; however, letter of intent was not ineffective on grounds it referred to dentist as a professional association absent a showing that such a defect prevented the defendant from receiving actual notice of the complaint and intent to sue).

¹⁹ Fla. Stat. §766.106(3)(a) (2002).

²⁰ Fla. Stat. §766.106(3)(a) (2002).

²¹ Fla. Stat. §766.106(3)(a)(4) (2002).

²² Fla. Stat. §766.106 (2002); cf. Grau v. Wells, 795 So. 2d 988 (Fla. 4th D.C.A. 2001) (finding that court, as authorized by statute, could strike doctor’s responsive pleadings for failure to reasonably investigate patient’s claim and enter default judgment against doctor who attached affidavit of expert who was also his business partner which was completed before any discovery and before rejection of patient’s claim).

²³ Fla. Stat. §766.203(3) (2002).

²⁴ Id.

²⁵ Fla. Stat. §766.204(1) (2002). However, an independent special hospital district with taxing authority owning two or more hospitals has 20 days. Fla. Stat. §766.204(1) (2002).

²⁶ Mason v. Bisogno, 633 So. 2d 464 (Fla. 5th D.C.A. 1994).

²⁷ Note that there are three extension and tolling provisions at play here. The 90-day presuit investigation phase filed seven days before the limitations ran out, the 60-day agreed stipulations of extension, and the 60-day period in which to respond to the defense’s notice of rejection. Regarding the 60-day period, the statute provides that the plaintiff has 60 days or the remainder of the statute of limitations, whichever is longer, in which to respond to the notice of rejection. In this case, the original limitations period had only seven days left and thus the 60 days applied, in which case the 90 days and 30 days tacked on pushed the period to April 25, 1991, and adding 60 days pushed the limit in which to respond to June 24, 1991. Note the court rejected 60 days from April 30, 1991, in which to file suit, ruling that the earlier receipt of the rejection of the claim on April 25, 1991, by the claimant began the 60 days in which to file suit. Thus, suit had to be filed on or before June 24, 1991 and the filing on June 27, 1991, was therefore untimely. Suit would have been timely had an automatic extension of the statute of limitations been obtained since there would have been 97 rather than seven days left until the statue of limitations ran at the time the notice of intent was received.

²⁸ Following further amendments, the 2002 version of Fla. R. Civ. P. 1.650 (d)(3) states, in pertinent part: “To avoid being barred by the applicable statute of limitations, an action must be filed within 60 days or within the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was received, whichever is longer, after the earliest of the following:

“(A) The expiration of 90 days after the date of receipt of the notice of intent to initiate litigation.

“(B) The expiration of 180 days after mailing of the notice of intent to initiate litigation if the claim is controlled by section 768.28(6)(a), Florida Statutes.

“(C) Receipt by claimant of a written rejection of the claim.

“(D) The expiration of any extension of the 90-day presuit screening period stipulated to by the parties in accordance with section 768.57(4), Florida Statutes.” (Emphasis added). Note that although the statute is tolled as of the date the notice of intent is mailed, the tolling period is measured from the date the notice is received by the prospective defendant. Boyd v. Becker, 627 So. 2d 481 (Fla. 1993).

²⁹ Mason v. Bisogno, 633 So. 2d at 468.

³⁰ Musculoskeletal Inst. Chartered v. Parham, 745 So. 2d 946 (Fla. 1999).

³¹ University of Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991).

³² Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d D.C.A. 1991).

³³ Pergrem v. Horan, 669 So. 2d 1150 (5th D.C.A. 1996).

³⁴ Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000) (abrogating Pergrem in that regard).

³⁵ Id.

³⁶ Id.

³⁷ This date is reached by adding the 90 days from the notice of intent and the 30-day extension stipulated to among the parties thus, 120 days from the original December 6, 1996 date is pushed forward to April 6, 1997.

³⁸ The automatic 90 days granted upon petition to the clerk of court is in addition to any other tolling provision, i.e., the 90-day period upon filing the notice of intent to initiate litigation, and thus the April 6, 1997, date is again pushed to July 5, 1997, in which to bring suit, since the petition was made within the limitations period.

³⁹ For a case dealing with the thorny issue of the limit of when a case may be filed, see Thorney v. Clough, 438 So. 2d 985 (Fla. 3d D.C.A. 1983), finding that where the very last day of the statute of limitations fell on a weekend, a case filed on the next business day was timely.

⁴⁰ Coffaro v. Hillsborough County Hospital Authority, 752 So. 2d 712 (Fla. 2d D.C.A. 2000), affirmed, 829 So. 2d 862 (Fla. 2002).

⁴¹ Fla. Stat. §§766.104(2), 766.106(4) (2002). Accordingly, the court held, in affirming the overriding policy of providing access to the courts, that the “purchased” 90-day extension of the statute of limitations would be added onto the 60 days in which to file suit extending the time to file suit to 150 days instead of 120 (there were 30 days remaining on the statute of limitations and the purchased 90-day extension at the time the notice of intent was filed). This author recommends carefully reading Justice Wells’ dissent (in which Senior Justice Harding concurred), since it unlikely this decision is the final word on all of these related issues. Justice Wells’ analysis seems to provide the more accurate statutory construction of the applicable statutes since, as he argues, the majority’s decision may result in inconsistent applications depending upon when the plaintiff purchased the extension under Fla. Stat. §766.104(2). It would seem wise, where practicable, in the exercise of due caution, to comply with Justice Wells’ construction, notwithstanding the court’s ruling in favor of greater access to the courts through an interpretation with a longer limitations period under the applicable statutes.

⁴² Justice Quince wrote the majority opinion in which Justices Anstead, Shaw, and Lewis concurred. Justice Pariente, in a concurring opinion in which Justice Anstead also concurred, noted the court’s holding was consistent with the court’s earlier explanation in Hankey v. Yarian, 755 So. 2d 93, 98 (Fla. 2000), that a plaintiff can “also automatically secure an additional 90-day extension under §766.104(2) that will be added to the end of both periods described” in §766.106(3) and (4).

⁴³ Barron v. Shapiro, 565 So. 2d 1319 (Fla. 1990) (reinstating summary judgment for the defendant because the plaintiff knew or should have known either of the injury or the negligent act); University of Miami v. Bogorff,583 So. 2d 1000 (Fla. 1991) (finding that limitations period began to run when parents noticed an injury to their child after treatment even if they did not know if the injury was caused by medical malpractice).

⁴⁴ In Tanner, assuming the statute of limitations began to run on April 1, 1988, it would expire on April 12, 1990. The Tanners claimed that the statute of limitations was tolled for 90 days and that they thereafter had 60 days to file suit. Accordingly, the Tanners argued the statute of limitations did not run until August 29, 1990 (150 days from April 1, 1990) so that suit was properly filed on August 1, 1990. However, the court found that the time remaining on the statute of limitations must be calculated from the date the notice of intent was filed, rather than simply adding on the extra time at the end of the original limitations period. Accordingly, from the date the notice of intent is filed, the plaintiff has 90 days (the tolling period during presuit) plus either 60 days or the remainder of the statute of limitations (calculated as the amount remaining at the time the notice of intent was sent), whichever is greater. Based on this calculation, the court concluded suit was not timely filed on August 1, 1990, since suit would have had to be filed within 150 days of February 12, 1990, or by July 12, 1990. Tanner, 618 So. 2d at 178, 183-184.

⁴⁵ Cardenas v. Godbold, 625 So. 2d 98 (Fla. 5th D.C.A. 1993); cf. Gumbs v. Guerra, 2002 WL 341750 (Fla. 3d D.C.A. 2002).

⁴⁶ Higgs v. Florida Dept. of Corrections, 654 So. 2d 624 (Fla. 5th D.C.A. 1995).

⁴⁷ Fla. Stat. §95.11(4)(b) (2002).

⁴⁸ Cunningham v. Lowery, 724 So. 2d 176 (Fla. 5th D.C.A. 1999).

⁴⁹ Perry v. Schlumbrecht,724 So. 2d 1239 (Fla. 2d D.C.A. 1999). Actions for wrongful death resulting from medical malpractice are subject to the medical malpractice statute of limitations rather than the two year statute of limitations for wrongful death actions. See Fla.Stat. §766.104(1); Crosby v. Jones, 705 So. 2d 1356 (Fla. 1998); Stone v. Rosenthal, 665 So. 2d 276 (Fla 4th D.C.A. 1995); Ash v. Stella, 457 So. 2d 1377( Fla. 1984).

⁵⁰ Torrey v. Leesburg Regional Medical Center, 796 So. 2d 544 (Fla. 5th D.C.A. 2001) (finding that personal representative of patient’s estate failed to comply with statutory requirements designed to encourage pretrial settlements in a medical malpractice action, where verified medical expert opinion affidavit failed to specify if expert had ever been disqualified and discovery materials were not made available even though they had been requested twice, and remanding to dismiss the claim). Cf. St. Mary’s Hosp. v. Bell,785 So. 2d 1261 (Fla. 4th D.C.A. 2001) (certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements in medical malpractice actions; however, certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements).

⁵¹ Integrated Health Care Services, Inc. v. Lang-Redway, 783 So. 2d 1108 (Fla. 2d D.C.A. 2001) (personal representative for estate of deceased nursing home patient was not required to comply with the presuit requirements in her action against nursing homes for violations of patient’s statutory rights as nursing home resident, where complaint did not allege separate claim for professional malpractice under common law).

⁵² Hazen v. Kaplan, 734 So. 2d 441 (Fla. 5th D.C.A. 1999).

⁵³ Tanner, 618 So. 2d at 181–82.

⁵⁴ Doe v. Hillsborough County Hosp. Authority, 816 So. 2d 262 (Fla. 2d D.C.A. 2002) (holding that patient did not have constructive notice of positive results of AIDS test in hospital records).

⁵⁵ Cascio v. St. Joseph Hosp. of Port Charlotte, Inc., 734 So. 2d 1099 (Fla. 2d D.C.A. 1999) (holding that nature of patient’s injury following cervical myelogram was not of the kind that was immediately apparent as being caused by medical malpractice); King v. Rojas, 767 So. 2d 510 (Fla. 4th D.C.A. 2000) (finding that nature of child’s injury did not necessarily communicate to parents the possibility of medical negligence).

⁵⁶ Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000).

⁵⁷ The certified question was: Where a plaintiff in a tort action based on childhood sexual abuse alleges that she suffered from traumatic amnesia caused by the abuse, does the delayed discovery doctrine postpone the accrual of the cause of action?

⁵⁸ Citing to Kush v. Lloyd, 616 So. 2d 415, 418 (Fla. 1992); cf. Holt v. Rowell, 798 So. 2d 767 (Fla. 2d D.C.A. 2001) (citing to Kush to discuss the impact doctrine and noting that the impact rule does not apply to the tort of wrongful birth; the impact rule does not generally apply in recognized torts where the damages are predominately emotional, such as defamation or invasion of privacy); cf. Owens-Corning Fiberglass Corp. v. Corcoran, 679 So. 2d 291 (Fla. 3d D.C.A. 1996); cf. R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995) (noting the limitations of the impact rule).

Mark R. Osherow is the shareholder of Mark R. Osherow, P.A., a boutique litigation firm with a principal office in Boca Raton and satellite locations in West Palm Beach, Ft. Lauderdale, and New York City. He is a graduate of the Benjamin N. Cardozo School of Law. Mr. Osherow has been practicing law since 1988 and is a member of the Florida, New York, New Jersey, and Connecticut bars. He concentrates in business litigation, products liability, medical negligence and other professional liability claims, insurance coverage disputes, and personal injury claims.
The author thanks Gabriel Riveros for his assistance with this article.