Florida has a very complex medical malpractice statutory scheme that an injured victim must follow in order to bring a case. Codified under chapter 766, the medical malpractice statutes require great skill to navigate. Amongst a host of other requirements, an injury victim must send relevant data to an expert medical professional in the same or similar specialty as the health care provider who you are going to bring suit against. That expert must then issue an affidavit verifying the negligence. The expert affidavit, along with several other documents, must then be served on the defendant doctor as part of a Notice of Intent to Initiate Medical Malpractice Litigation. All of the above must be accomplished within the two-year Statute of Limitations that Florida law affords victims of medical malpractice.
The recent case of Bay County Board of Commissioners v. Seeley provides us with a nice look at just how complex medical malpractice litigation can be. In Seeley, the plaintiff was injured when she fell off a stretcher while being wheeled by paramedics from her home to the awaiting ambulance. At first, she filed a lawsuit without complying with the medical malpractice pre-suit screening process because she did not believe her case was for medical negligence. That lawsuit was dismissed as the trial court determined her allegations were in fact medical malpractice in nature and thus she had to comply with the requirements of chapter 766.
After her case was dismissed, Ms. Seeley obtained the necessary documents and sent via certified mail her Notice of Intent to Initiate Medical Malpractice Litigation to the defendant one day prior to the expiration of the Statute of Limitations. The defendant, however, did not receive Ms. Seeley’s Notice of Intent until two business days after the Statute of Limitations had expired. The defendant moved to dismiss the case once again; this time it argued that Ms. Seeley failed to comply with the Statute of Limitations. The trial court denied the defendant’s Motion to Dismiss, relying on the plain language of Fla. Stat. § 766.106(4) “notice of intent to initiate litigation shall be served within [the statute of limitations]” and Florida Rule of Civil Procedure 1.650(d)(1).
The defendant appealed the trial court’s ruling denying its Motion to Dismiss and the appellate court upheld the decision. In a very cogent concurring opinion (the majority was per curiam), Judge Makar of the First District Court of Appeal noted the Florida Supreme Court’s controlling words: that the presuit statute “should be liberally construed to allow the parties access to courts”. Hillsborough Cty. Hosp. Auth. v. Coffaro, 829 So. 2d 862, 866 (Fla. 2002). Judge Makar also noted a conflict between the Fifth District’s decision in Baxter v. Northrup (holding the Notice of Intent must merely be served before the expiration of the statute of limitations) and the Second District’s decision in Bove v. Naples HMA (holding that the date the notice is received by the defendants trumps the date that the notice is mailed for statute of limitations purposes). In reasoning that the Fifth District’s approach “is more defensible”, Judge Makar noted “The timely service of a notice of intent satisfies the requirement of general notice, while a defendant’s receipt of the notice ensures that the full ninety days of tolling is available thereafter so that defendants may evaluate plaintiffs’ claims.”
As you can see, the medical malpractice laws in Florida are indeed quite comprehensive and complex. If you or a loved one has been seriously hurt or killed due to medical negligence, you want an experienced litigation team fighting for your rights. Call The Grife Law Firm toll-free at 855.998.0770 for a free consultation.