Malpractice presuit notice extends statute of limitations for all

Florida appeals court finds that pre-suit notice of intent, once received by some malpractice defendants, tolls the statute of limitations for all possible medical malpractice defendants. A patient who had been injured during surgery sent a notice of intent to initiate litigation to the surgeon and hospital involved only 30 days before the statute of limitations was to expire. Although she apparently knew the identities of the anesthesiologist and nurse anesthetist involved in her surgery, the plaintiff did not send them a notice of intent until almost 120 days later. After the suit was filed the trial court entered summary judgment in favor of the anesthesia defendants, finding that the plaintiff’s notice of intent to them was too late under §766.106, Florida Statutes. The appellate court reversed, holding that under the clear language of §766.106(4), once the first notice of intent was received by the surgeon and the hospital, the statute of limitations was tolled for 90 days as to any and all prospective defendants. Therefore, the plaintiff had 90 days from that date, plus the additional 30 days remaining on the original statute of limitations, within which to send a second notice of intent to the anesthesia defendants. The Third District also rejected the anesthesia defendants’ argument that the complaint against them was filed too late, finding that the plaintiff had 90 days after the receipt of the second notice of intent, plus an additional 60 days under Florida Rule of Civil Procedure 1.650(d)(3), to file suit against them.
Salazar v. Coello, __ So. 3d __, 2014 Fla. App. LEXIS 20403 (3d DCA 12-17-14).