PERSONAL INJURY CORNER
DISCOVERY OF MEDICAL MALPRACTICE CLAIM
UNDER STATUTE OF LIMITATIONS
TED BABBITT
Florida Statute 95.11(4)(b) states:
“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…”
Mobley v. Homestead Hospital, Inc., 45
Fla.L.Weekly D2 (Fla. 3d DCA December 26,
2019), was an appeal from an order granting
a summary judgment on the issue of the
statute of limitations in a complex medical
malpractice case involving the delivery of
a baby born with a neurologic injury. The
child was born on September 16, 2009, and
a Notice of Intent was filed on July 22, 2013,
a few months short of the 4 year period
described in the statute. Plaintiffs claimed
that they had no knowledge of the potential
for a malpractice case until November of
2012 when they were told by a doctor and his
nurse that the child’s diagnosis of spastic
cerebral palsy might well be related to the
delivery of the child. Prior to that time,
the child was seen by a number of doctors
all of whom indicated the child’s delayed
progress was either related to a genetic
issue or was unknown. The Hospital relied
for its Motion for Summary Judgment on
the fact that the Plaintiffs hired an attorney
who requested medical records pursuant to
Florida Statute 766.204.
The Florida Supreme Court explained
in Tanner v. Hartog, 618 So. 2d 177, 181-
82 (Fla. 1993) how to calculate the start
of the discovery portion of the statute of
limitations:
“We hold that the knowledge of the
injury as referred to in the rule as
triggering the statute of limitations
means not only knowledge of the
injury but also knowledge that
there is a reasonable possibility that
the injury was caused by medical
malpractice. The nature of the
injury, standing alone, may be such
that it communicates the possibility
of medical negligence, in which
event the statute of limitations will
immediately begin to run upon
discovery of the injury itself. On
the other hand, if the injury is such
that it is likely to have occurred from
natural causes, the statute will not
begin to run until such time as there
is reason to believe that medical
malpractice may possibly have
occurred.”
According to Cowen v. Cooper, 20 So. 3d
453, 455-56, (Fla. 4th DCA 2009), knowledge
of the medical condition alone is not
enough to determine when the Statute of
Limitations accrues.
The Third District, in Mobley, in overturning
the summary judgment entered for the
Hospital, held that:
“In the Mobleys’ case, the issue
revolves around the date when Mrs.
Mobley had knowledge that there
was a reasonable possibility that
Tavarion’s injuries resulted not from
a natural cause, but from medical
malpractice. This is the date that
the statute of limitations begins to
run. Florida courts have held that
this determination of when a person
knew or reasonably should have
known of the possibility of medical
malpractice is ‘fact-specific and
within the province of the jury, not
the trial judge’. Id. at 456. Florida law
is clear on this issue. Gonzalez v.
Tracy, 994 So. 2d 402, 405 (Fla.3d DCA
2008). Suspecting wrongdoing has
been held not to be enough. Thomas
v. Lopez, 982 So. 2d 64, 68 (Fla. 5th
DCA 2008).”
In overturning the summary judgment, the
Mobley Court relied on Baxter v. Northrup,
128 So. 3d 908 (Fla. 5th DCA 2013), which at
910, 912 held:
"It is difficult to envision how a
lay person can be charged with
knowledge that particular symptoms
suggest an act of negligence when
medical professionals, who scrutinize
the case with the clarity of hindsight,
conclude that the symptoms are
the product of unexplained, natural
causes.
...
Though [the patient’s] suspicions
might have been mounting throughout
the period following his surgery,
this alone does nothing to pinpoint,
as a matter of law, a definitive start
date for the commencement of the
running of the statute. This is a
question for the jury, not appropriate
for summary judgment.”
The Third District thus held that a genuine
issue of material fact existed as to when
the Plaintiff acquired knowledge that
there was a reasonable possibility that her
child’s injuries were caused by medical
malpractice and that, therefore, the Trial
Court improperly granted a summary
judgment.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE
OF CHARGE, BY CALLING (561) 684-2500.
7.28.20 Personal Injury
Seminar
The Personal Injury CLE:
Unique Issues in Transportation Cases
The Personal Injury CLE committee held
a live webinar via Zoom on Tuesday, July
28, 2020. Featuring business sponsor
Ceara Goodnow from Global Engineering
Scientific Solutions, David C. Prather,
Esq., Rebecca Brock, Esq., Poorad Razavi,
Esq., Rachel Studley, Esq., Michael Smith,
Esq., David Drahos, Esq., Peter Hunt, Esq.,
and Geoff Probst all spoke. CLE recording
is now available for MP3 or CD purchase
at https://cle.palmbeachbar.org.
PBCBA BAR BULLETIN
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