What is the Statute of Limitation for Medical Malpractice?

The time limit is two years (sort of)

A statute of limitations is a time limit set by law which creates a deadline for filing a lawsuit. If you start your claim after the deadline has expired, the case will be thrown out.  In Florida the statute of limitation for medical malpractice is two years from when the patient (or sometimes a particular family member, parent, or guardian) either knew, or should have known with the exercise of reasonable diligence, that the injury had occurred and there was a reasonable possibility that the injury was caused by medical malpractice. Calculating this two-year time limit can be tricky because this definition comes from a combination of the words in the statute itself, and multiple Florida case decisions which interpret what is necessary for one to have knowledge of the “incident,” which is the keyword in the statute.  But there is a second part of this rule.  Please read the next section about the statute of repose.

What is the medical malpractice statute of repose?

Florida also has a very harsh rule called the statute of repose. This rule says that unless there is fraud, concealment, or misrepresentation, under no circumstances may a healthcare provider be sued for medical malpractice more than four years after the date of the actual incident of malpractice. So even if the patient or family member does not know about the malpractice and there is no reasonable way to figure it out, the claim may not be brought more than four years after the malpractice occurs under most circumstances.  If you can prove fraud, concealment, or misrepresentation by the healthcare provider, which is hard to do, the four-year statute of repose may be extended to seven-years.  It is important to understand that whichever expires first, either the 2-year statute of limitations or the statute of repose, will cut off the claim at that time and it does not matter if the other statute has not expired yet.

Special statute of repose for children

Florida has a special statute of repose for children. This special rule says that the four-year statute of repose described above will not act to cut off a child’s malpractice claim prior to the child’s eighth birthday. Keep in mind, however, that the two-year statute of limitations can still cut off the claim well before that if the child’s parents or guardian either knew or, with the exercise of reasonable care, should have known of the injury to the child and the reasonable possibility that it was caused by malpractice. In other words, while the statute of repose was extended for children of a certain age, there was no similar extension for the statute of limitations, and whichever statute expires first will cut off your claim if you don’t file it soon enough.

If the case is going to involve a state agency as a defendant, or a military or Veterans Administration Hospital or Clinic, there are special advance notice and time requirements that must be strictly followed.

The bottom line on the statute of limitations and statute of repose issue is that they can be tricky, and there are a few exceptions. We have said it many times throughout this site: If you think you might want to pursue a claim, contact us or any other experienced medical malpractice lawyer without delay.

The exact language of the statute of limitations law is as follows:

95.11 Limitations other than for the recovery of real property.–Actions other than for recovery of real property shall be commenced as follows:

(4) WITHIN TWO YEARS.—

(b) 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 provide the exclusive remedy.

WARNING: Applying the medical malpractice statute of limitations in specific cases can be tricky.  If you are trying to decide if it is too late to bring your case, you should consult an experienced malpractice lawyer without delay.  I