FAQ's: Your Questions Answered
A statute of limitations is a boundary set by the state’s laws mandating how long an injured party has after the injury occurred to bring a claim. The State of Florida has a two-year statute of limitations in medical negligence cases. Generally, this means that the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred, and where there was a reasonable possibility that medical malpractice caused it.
Florida also has a “statute of repose,” another harsh provision in its civil laws. This means that absent fraud, concealment, or misrepresentation, no person may sue a health care provider more than four years after the actual malpractice incident. The effect of this rule is that even if the injured party does not know or couldn’t be expected to know that some negligent act caused the injury, he or she cannot bring a claim four years after the incident occurs in most circumstances.
For example, if a person schedules a surgery to have a limb amputated, but the doctor amputates the wrong limb, the mistake will be apparent as soon as the patient regains consciousness. In this case, the patient would only have 2 years to bring the claim.
On the other hand, consider the case of a person who is released from the hospital following a routine surgery with a scalpel still in their abdomen. This person may continue to live a normal, happy, and healthy life for several years undisturbed. Then, one day 3 years later, perhaps because of an auto accident or some other trauma, the scalpel repositions and punctures the person’s lungs, inflicting unbelievable pain and causing serious injury. Despite the fact that the statute of limitations is only 2 years, the patient did not know and could not reasonably have known about the scalpel left inside. Thus, this person would have 1 year remaining to bring a medical malpractice suit before the 4 year “statute of repose” expires against any parties responsible for the scalpel being left inside after the surgery.
Florida has one significant exception to the 4 year statute of repose, however: “Tony’s law.” Tony’s Law was enacted in 1996 and applies to malpractice incidents that occurred after July 1, 1996. The law states that the 4 year statute of repose cannot prevent a child’s malpractice claim from being heard before the child’s eighth birthday. Be careful, though. The two-year statute can still cut the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility medical malpractice caused it.
Lastly, a special statute of limitations is placed on NICA claims giving parents five years from the baby’s date of birth to file a claim. On the other hand, the statute of limitations for filing a medical malpractice claim is much more complicated and can range from two years to eight years after the date of birth, depending on the unique circumstances.
If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin Injury Attorneys to help you get everything to which you may be entitled. Call us at 800-257-1822 for a free consultation and to have all your questions answered regarding your injury.