In its opinion filed on April 1, 2016, the District Court of Appeal of Florida Second District (“Appellate Court”) affirmed the dismissal of the plaintiff’s Florida medical malpractice lawsuit because the plaintiff failed to file her complaint within the two-year statute of limitations for Florida medical malpractice claims as set forth in section 95.11(4)(b).
The Underlying Facts
The decedent died on February 26, 2012, after suffering a retroperitoneal bleed following a bone marrow biopsy performed by the defendant physician. After the bleed was discovered, the decedent was evaluated by another physician who concluded that the bleed was a co-morbid condition acting in conjunction with other underlying medical issues.
The decedent’s wife met with one of the defendant physicians on April 19, 2012, to review what had occurred during the bone marrow biopsy. She then met with her Florida medical malpractice lawyer on July 10, 2012.
On February 25, 2014, the decedent’s wife served the defendant hospital by certified mail with a copy of the notice of intent to pursue litigation, the decedent’s medical records, and two letters from her medical experts. The notice stated that “the two (2) year timeframe [in which to file the complaint] would begin to run from the date of Mr. Bove’s death, as this was the date the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy.” However, the defendant hospital did not receive the notice of intent until March 4, 2014. The two defendant physicians were served with the notice even later.
The wife filed petitions for extensions of the statute of limitations (the first petition was filed on April 30, 2014). After receiving denials of the notices of intent from all of the defendants, the wife filed her Florida medical malpractice complaint on behalf of her husband’s estate, on September 8, 2014. The defendants filed motions to dismiss, which the trial court granted with prejudice solely on the basis that the plaintiff failed to file her complaint within the two-year statute of limitations set forth in section 95.11(4)(b), Florida Statutes (2011). The plaintiff appealed.
Section 95.11(4)(b) provides in relevant part: “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.”
The Appellate Court stated that mere knowledge of an injury is not enough to trigger the running of the statute of limitations; the plaintiff must also have knowledge that there is a reasonable possibility that the injury was caused by medical malpractice. In this case, the Appellate Court noted that in the plaintiff’s notice of intent served on the defendant hospital, her attorney acknowledged that on the date of her husband’s death (February 26, 2012), “the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy.”
The Appellate Court held that the plaintiff was bound by the assertion contained within her notice of intent that she first became aware of the defendants’ possible negligence on February 26, 2012 (the service of the notice of intent was a statutory prerequisite to filing suit, and it contained factual allegations relied on by the parties).
The Appellate Court held that although the wife sent the notice of intent to the defendant hospital on February 25, 2014, one day before the statute of limitations expired, the defendant hospital did not receive the notice of intent until March 4, 2014 (the defendant physicians received the notice of intent even later). Because none of the defendants received the notice of intent until after the statute of limitations expired on February 26, 2014, the plaintiff could not revive it by filing a petition for extension of the limitations period.
Bove v. Naples HMA, LLC, et al., Case No. 2D15-1680.
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