In Bove v. Naples HMA, LLC, the Second District held that the plaintiff’s medical malpractice lawsuit was filed in an untimely manner given the relevant statute of limitations time frame. On February 26, 2012, the plaintiff’s husband died after a bone marrow transplant. On February 25, 2014, one day before the two-year statute of limitations would be up, the plaintiff sent the defendants a notice of intent to pursue litigation. The defendants did not receive the notice until early March of the same year. The plaintiff filed a motion to extend the statute of limitations. The defendants filed a motion to dismiss the claim on the grounds that the statue of limitations was up. The trial court agreed with the defendants.
On appeal, the plaintiff argued that she did not know of the potential medical negligence until July 2012, when she first met with her lawyer. Under Florida law, the time limit for medical malpractice claims is two years from the date of the incident, or two years from the date the injury was discovered or should have been discovered, but not more than four years from the date of the incident.
The court noted that in certain situations, this type of harm would not be the result of medical malpractice. The plaintiff’s notice of intent to pursue a lawsuit stated that on the date of her husband’s death, the family and estate “discovered the negligence of the professionals” in carrying out the bone marrow biopsy. Typically, parties are bound by what they plead initially and cannot later take an inconsistent position. Here, the plaintiff had filed a later affidavit in response to the defendants’ motions, claiming she did not know of the medical malpractice until she met with her attorney. However, the court concluded that she was bound by her statement in the notice of intent, in which she said she knew of possible negligence on the date of her husband’s passing. Thus, the statute of limitations had expired on February 26, 2014.
The court also did not agree with the plaintiff’s argument that the statute of limitations was tolled when she initially mailed her notice of intent on February 25, 2014. The court explained that the requirement for tolling is receipt by the defendant before the statute of limitations begins to run, which did not happen here. As a result, the court held that it is the date when the notice is received rather than the date when it is mailed that is relevant for deciding whether or not the statute of limitations has been tolled. While the plaintiff mailed the notice of intent prior to the expiration of the statute of limitations, it was not received until afterwards.
It may seem that adhering to the statute of limitations is an easy task, but as this case highlights, it can become quite complicated. At the Law Offices of Robert Dixon, our medical malpractice attorneys have represented many South Florida residents and understand the nuances of this area of law. You can rest assured that we will make every effort to get you a favorable outcome in your case. For more information, call us at 1-877-499-HURT (4878) or contact us online today.
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