Medical Malpractice Statute of Limitations

Once you have completed the presuit process, and if the matter does not settle or get resolved through arbitration, you can file suit—so long as you are within the statute of limitations.

Under section 95.11(4)(c), Florida Statutes:

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; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. This paragraph shall not apply to actions for which ss. 766.301-766.316 [pertaining to Florida’s Birth-Related Neurological Injury Compensation Plan] provide the exclusive remedy.

So long as the presuit notice was sent or served within the two-year statute of limitations, mailing or attempting to serve it tolls the time to file suit during the 90-day investigation period. § 766.106(4), Fla. Stat. The parties can agree to extend this further. Id. But, “[u]pon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.” Id.

If needed, or as an extra precaution if time is running tight, you can ask the court for a ninety-day extension. Under 766.104(2), “[u]pon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42 from which the clerk shall remit $4.50 to the Department of Revenue for deposit into the General Revenue Fund, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by [766.204(1)].” Notably, “[t]his period shall be in addition to other tolling periods.” Id. And a court order is not “required for the extension to be effective.” Id. But, this extension provision cannot “revive a cause of action on which the statute of limitations has run.” Id.

If you or anyone you know needs a lawyer to seek justice in a medical malpractice case, please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!