Statute of Limitations Article
This article was written by Scott R. McMillen and first published in the Florida Bar Journal in November, 1996.
THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS:
SOME ANSWERS AND SOME QUESTIONS
The time limitation for filing medical negligence claims in Florida is governed in the first instance by F.S., 95.11(4)(b).(1) This statute contains three separate time periods that may be applicable. First, the case must be commenced(2) within two years “…from the time the incident is discovered, or should have been discovered with the exercise of due diligence.”(3) Because the date a patient discovered, or should have discovered, an incident of medical negligence may be many years following the actual medical treatment, the legislature also saw fit to impose a second limitation in the form of an absolute statute of repose. The statutory language thus continues, “…in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the action accrued.”(4) In order to avoid encouraging concealment of negligent conduct by health care providers, the statute concludes with the third time period. In cases where the plaintiff can show that “fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four year period, the period of limitations is extended forward two years…but in no event to exceed seven years from the date the incident giving rise to the injury occurred.”(5)
When statute of limitation issues arise in medical negligence cases, they most often involve the interpretation or application of the two year limitations period, rather than the four year or seven year statute of repose. This article focuses on the impact of recent appellate decisions regarding the two year statute of limitations, particularly addressing the kind of knowledge that will trigger the commencement of the two year limitations period and who must have that knowledge before the clock will begin running.
What Must Be Known?
Many good trial lawyers were surprised in 1990 when the Florida Supreme Court issued its decision in Barron v. Shapiro, 565 So.2d 1319 (Fla.1990). That decision reaffirmed a principle first announced in Nardone v. Reynolds, 333 So.2d 25 (1976), that the statute of limitations for filing medical negligence cases begins to run when the plaintiff has either notice of the negligent act giving rise to the cause of action or notice of the physical injury that was caused by the negligent act. This principle has been referred to as the Nardone rule,(6) and the “discovery rule”.(7)
In Barron, the patient developed a serious infection following an operation on his colon. He was heavily medicated for the infection, and within four months he was diagnosed as blind. Under these facts the Supreme Court, citing Nardone, held that the patient’s knowledge of his injury, which was blindness, was enough to start the clock ticking regardless of whether he had any reason to suspect the blindness was caused by his medical treatment.
The resurrection of the Nardone rule in Barron caught litigants by surprise because statutory changes(8) and case law(9) since the Nardone decision in 1976 suggested that a plaintiff must have actual or constructive knowledge of both the injury and the negligent act, not just one or the other, in order to start the limitations period.
Strict application of the Nardone rule could have harsh results for plaintiffs in a number of circumstances. Many times a particular disease process results in medical complications, including significant permanent injury or even death, without negligence having occurred. Defense lawyers often raise this argument during voir dire, trying to condition prospective jurors that, just because a patient died or became disabled, they should not conclude that malpractice had occurred. Numerous cases are defended on the same ground. There may be nothing about an injury or death, standing alone, to remotely suggest to the patient or his family that there was medical negligence in treating the patient, yet the Nardone rule starts the clock ticking on the two year limitations period for filing a claim as soon as the injury or death occurs. In many cases of medical negligence this rule effectively creates a two year statute of repose simply because injury often occurs at the time the negligence is committed, or promptly thereafter.
After the Nardone rule was revived by Barron, several District Courts of Appeal were reluctant to strictly apply the rule.(10) Recognizing that reluctance, and the severe application of the rule in certain cases, the Florida Supreme Court revisited the issue in 1993.
In Tanner v. Hartog, 618 So.2d 177 (Fla.1993), the Supreme Court announced it was “…determined to place an interpretation on the Nardone rule designed to ameliorate the harsh results which can sometimes occur by its strict application.”(11) The Court acknowledged the unjust result the Nardone rule caused in situations where the adverse consequences of which the plaintiff had knowledge often also occurred as a result of natural causes not related to negligent conduct. The Court further recognized that the Nardone rule strained the doctor-patient relationship by requiring a patient to make an early investigation of the possibility of malpractice whenever something unfortunate happens in the course of medical treatment. The Court then held that henceforth the knowledge required to trigger the commencement of the statute of limitations would be “…not only knowledge of the injury, but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.”(12)
Tanner acknowledged that the new rule would make it much more difficult for a judge to decide as a matter of law when the statute of limitations begins to run, so the issue would now more often require the jury’s input as fact-finder.(13) It was noted, however, that there is still a four year statute of repose for medical negligence claims, which creates an absolute bar to bringing the action; the statute of repose is measured four years from the date the medical negligence occurred, irrespective of anyone’s actual or constructive knowledge. Because in most cases the date the medical negligence occurred will be undisputed, the application of the four year statute of repose will generally still be a matter of law for the court to decide.(14)
The practical effect of the Tanner rule for plaintiffs may be that, for most types of cases, the two year statute of limitations is of little concern, and only the four year statute of repose, measured from the date of the negligent act, will be critical. In the past it was easy for a defense lawyer to argue to a judge on a motion for summary judgment that, irrespective of whether the defendant was negligent, the plaintiff must lose because he technically filed his case too late, i.e. he filed it more than two years after he knew or reasonably should have known of the injury. It will be much more difficult to argue to a jury that the case was filed too late because the plaintiff knew or should have known of the injury and also the reasonable possibility there was negligence. What would the defense lawyer argue at the close of trial? “Members of the jury, I submit to you that the overwhelming evidence in this case is that Dr. Doe was not negligent; but if you think he was negligent, clearly his negligence was so obvious that the plaintiff should have realized it shortly after it occurred.”
Of course no defense lawyer would make his argument quite this way, but every defense lawyer should recognize that the plaintiff’s lawyer will recharacterize the defense argument in this manner. Only if the defense is conceding liability will the statute of limitations defense be a straightforward argument to a jury. Even then, however, it will be a difficult argument on which to prevail, because of the natural reluctance of jurors to exonerate an admittedly negligent defendant based on a technicality. On the other hand, as pointed out by the Court in Tanner, the four year statute of repose remains a powerful weapon in the hands of a defendant and is an absolute bar for dilatory plaintiffs.
In 1992, the Florida Supreme Court addressed the application of the four year statute of repose in Kush v. Lloyd, 616 So.2d 415 (Fla.1992). The plaintiffs were the parents of successive children born with significant deformities. When the first child was born the physicians allegedly misinformed the parents about the cause of his deformities, telling the parents their baby suffered an accident of nature and not a genetic deformity, and that it was safe to have a second child. Approximately nine years after the negligent diagnosis of the cause of the deformity to the first child, the plaintiffs had a second child who was also significantly deformed. They had him tested and only then learned the defendants had given them erroneous information about the cause of the injuries to the first child. The parents brought suit alleging wrongful birth and wrongful life(15) damages resulting from the birth of the second child. The Third District Court of Appeal had determined that strictly applying the four year statute of repose to these facts would cut off the plaintiffs’ access to the courts before their cause of action even accrued. The damages did not occur until the second child was born, nine years after the act of negligence. The District Court felt this violated the plaintiffs’ right of access to the courts.(16) The Supreme Court reversed, in a majority opinion that found the four year statute of repose constitutional even though it prevented a cause of action from being pursued before the cause of action had even accrued, or was known to the injured person.(17)
Thus, plaintiff’s knowledge, and whether the tort is even complete, has been ruled irrelevant under the statute of repose. This is a harsh rule for the hapless plaintiff who finds himself without a legal remedy before he even knows, or has any reason to know, he or his family member has been harmed by the negligence of another.
Whose Knowledge Suffices?
While Tanner returns to what some would call the more just rule as to the type of knowledge needed in order to trigger the start of the two year medical negligence statute of limitations, it provides little guidance concerning whose knowledge starts the statute running.
One little-noticed Florida case that considered this issue was Arthur v. Unicare Health Facilities, Inc., 602 So.2d 596 (Fla.2d DCA 1992). This medical negligence case involved claims for both personal injury and wrongful death. The patient was an elderly gentleman who allegedly sustained decubitus ulcers, resulting in infection, amputation of his leg, and ultimately death, as a result of the defendant’s negligence.(18) There was considerable doubt whether the plaintiff himself “knew” of the negligence, or even the injury, because he was deaf, blind, senile, and out of touch with his surroundings and reality.(19) The first question addressed by the Court was, under those facts, whether the patient himself could have sufficient notice of the injury or negligence to trigger the two year statute of limitations running. The Court recognized this presented a factual setting yet to be addressed by a Florida Court.(20) Because the patient had little or no awareness of his condition or the acts or omissions of those around him, the Second District held this created a jury question as to his capacity to perceive the incident or injury, thus precluding a summary defense judgment on that issue.
A second significant issue addressed by Arthur also was novel. The issue was whether the knowledge of the patient’s adult son, who had actual knowledge of his father’s decubitus ulcers at the time, was sufficient to trigger the start of the two year statute of limitations. The case was decided under the Nardone rule, so knowledge of the injury would have been sufficient to trigger the statute so long as the son’s knowledge could be imputed to the patient. Indeed, not only did the adult son know of the injuries, he had a power of attorney which arguably would have allowed him to bring suit for his father. The Second District held that the son’s knowledge could not be imputed to his father under these circumstances, and that this also constituted grounds upon which to reverse the summary judgment for the defendants.(21) The Court reasoned that the senile patient had not been declared legally incompetent and his son had not been appointed his legal guardian. Since the son was not the legal guardian he had no duty to bring a claim on behalf of his father. The Court distinguished the circumstance when a parent, as legal guardian, has a legal right and a duty to bring an action on behalf of an injured child. With an emancipated adult the Court found that neither family nor friends have such a duty, and consequently notice to them of injury or possible malpractice cannot be imputed to the adult patient.(22) The Court was also unconvinced the power of attorney conferred a right on behalf of the adult son to bring a suit, but nevertheless concluded it conferred no duty to bring a suit, and so would not result in imputed notice to the patient in any event.(23)
This case creates intriguing questions that will arise in some of the most sizeable medical negligence cases: those involving significant brain damage or death. In any case where brain damage occurs to an emancipated adult, rendering him incompetent, the issue of whose knowledge starts the two year clock ticking may become paramount. Under the Arthur rationale, the patient would have no notice of what happened because he lacks sufficient awareness due to his brain damage. Until a legal guardianship is established, who has a duty to bring a cause of action on behalf of that person? It is possible that if there is a spouse, a court will conclude the spouse has an obligation to pursue both the guardianship and the cause of action. No Florida case has held this so far and it is unclear from the Arthur opinion whether the elderly patient had a surviving spouse, whether the spouse had relevant knowledge, and whether the court included the spouse when it stated that “family members” had no duty to bring an action for the patient. Considering that not all marriages are blissful, arguably it would be inappropriate to find the non-injured spouse’s notice sufficient to cut off a cause of action for the injured spouse. Perhaps the consortium claim should be lost, but it could be argued that there is no justification for a rule resulting in the forfeiture of the injured spouse’s own cause of action.
Another reason it might be said that a spouse of an injured adult has no duty, but the parent of an injured minor does, is because of the differences in the legal disability. The law automatically creates a legal disability for a minor,(24) due solely to his age, and then automatically recognizes the natural parents as natural guardians, before the injury ever occurs. But for an unemancipated adult, the law generally assumes legal competence, not incompetence, until proven otherwise in court. Until legal incompetence is proven, one spouse normally has no legal right to file suit for another. Presumably if there is no right to act for another there can be no duty to act either.
If there is no spouse the result seems clear under Arthur: no other family member has a duty either to become the guardian or to pursue a case. Therefore, the family’s knowledge of the incident causing the brain damage is irrelevant for statute of limitations purposes, at least until one of them becomes appointed legal guardian.(25)
Similar questions arise when one considers the two year statute of limitations in a wrongful death case. These cases may only be brought by a court appointed personal representative of the estate, who files suit on behalf of the estate and each family member considered a “survivor”.(26) While probate statutes provide for family preferences in appointment as personal representative,(27) there is no obligation to accept an appointment. Consequently, the knowledge of any particular family member about the medical incident would also be irrelevant under Arthur.
Perhaps in adult brain damage cases and wrongful death cases there simply can be no commencement of the two year statute of limitations until the actual appointment of a legal or personal representative. While this may seem unfair to the defendant health care provider, any other rule arguably would be even more unfair to certain plaintiffs. The four year statute of repose nonetheless prevents inordinate delay.
The application of the medical negligence statute of limitations is still evolving in Florida. While Tanner, through the easing of the Nardone rule, provides some relief to plaintiffs, Kush and the absolute four year statute of repose protect health care providers in a way no other class of defendants is protected. Future cases will explore the ramifications of Arthur, including the question of who must have notice to trigger the two year limitations period.
1. The text of Fla. Stat. 95.11(4)(b) (1993), reads in its entirety:
(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 action accrued. 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 physical 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 within the 4-year period, 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 of the incident giving rise to the injury occurred.
2. Medical negligence claims are initially commenced by the serving of a notice of intent to initiate litigation pursuant to Fla. Stat. 766.106 (1993). There are statute of limitations tolling periods provided for in Fla. Stat. 766.106(4) and 766.104(2), which are beyond the scope of this article.
3. Fla. Stat. 95.11(4)(b).
5. Id. Left for another article, and further case development, is the question of what actually constitutes “fraud, concealment, or misrepresentation” required by the statute to extend the four year statute of limitations to seven years. Query whether fraud, concealment, and misrepresentation are three different types of conduct?
6. Tanner v. Hartog, 618 So.2d 177, at 179 (Fla.1993).
7. Arthur v. Unicare Health Facilities, 602 So.2d 596, at 598 (Fla.2d DCA 1992).
8. FLA. STAT. 95.11(4) was amended twice subsequent to the incident giving rise to the medical negligence cause of action in Nardone and prior to the decision itself. Nardone, 333 So.2d at 32, n. 4.
9. See e.g. Moore v. Morris, 475 So.2d 666 (Fla.1985), which suggests that mere knowledge of the adverse result, standing alone, does not necessarily trigger the running of the statute of limitations.
10. Menendez v. Public Health Trust, 566 So.2d 279, 282 n. 3 (Fla.3d DCA 1990), approved, 584 So.2d 567 (Fla.1991), “[a] defect at birth does not necessarily put the parents on notice of injury and possible negligence.”; Southern Neurological Associates v. Fine, 591 So.2d 252, 256 (Fla.4th DCA 1991), “Knowledge that one suffered injury…need not constitute notice of negligence or injury caused by negligence.”; Norsworthy v. Holmes Regional Medical Center, Inc., 598 So.2d 105, 107 (Fla.5th DCA 1992), affirmed 618 So.2d 186 (Fla.1993), “Perhaps we read…Barron too optimistically, but we believe those cases simply stand for the proposition that when the nature of the bodily damage that occurs during medical treatment is such that, in and of itself, it communicates the possibility of medical negligence, then the statute of limitations begins to run.”; Rogers v. Ruiz, 594 So.2d 756, 772 (Fla.2d DCA 1991) (Parker, J., concurring), “It is my belief that…[the Nardone rule] rips at the very fabric of our society… Once the body is in the ground…the grieving family member…should retain an attorney immediately and start subpoenaing medical records.”
11. Tanner, 618 So.2d at 181.
13. Id. at 182.
15. “Wrongful birth” is a cause of action involving an impaired child where the parents allege that negligent conduct deprived them of the ability or knowledge to avoid becoming pregnant or to terminate the pregnancy before the injured child is born. The cause of action is for the parents, involving their emotional damages and the extraordinary expenses of raising the child. “Wrongful life” is a cause of action on behalf of the child born with birth defects, alleging the child’s birth should not have occurred. “Wrongful life” is not a recognized tort in Florida. Kush, 616 So.2d at 417, n. 3.
16. Lloyd v. North Broward Hospital District, 570 So.2d 984, at 986-87 (Fla.3d DCA 1990).
17. Kush v. Lloyd, 616 So.2d at 419.
18. The complaint alleged the negligence caused his injuries and death, or, alternatively, the negligence caused his injuries but he died of natural unrelated causes. Arthur, 602 So.2d at 598.
19. Id. at 599.
24. Guardianship law defines “incompetent” as a person who, because of minority, mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both. Fla. Stat. 744.102(5) (1993).
25. If a family member with prior knowledge becomes appointed guardian, query whether the two year clock begins anew then, or whether any prior period of time with knowledge gets deducted. If it is the latter, the result is the same as imputing the person’s early knowledge to the patient. If this becomes the rule it could perhaps be avoided by enterprising lawyers by appointing a guardian with no knowledge, or more recent knowledge.
26. Fla. Stat. 768.20 (1993).
27. Fla. Stat. 733.301 (1993).
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