In Florida, the statute of limitations for medical malpractice allows an injured person two years from the date they were injured to file a lawsuit against the provider that harmed them. All personal injury cases are subject to a timeframe, dictated by the statute of limitations. Once that statutory window has passed, your right to take action will be severely limited.
The medical malpractice statute of limitations in Florida does provide for some exceptions to the two-year rule, but it also has a specific process that separates it from other personal injury cases.
The Florida Statute of Limitations for Medical Malpractice
Although Florida law, gives two years from the date of the injury to file a medical malpractice lawsuit, not all injuries are immediately apparent, so patients may not know they were victims of medical malpractice until well after the malpractice occurred. In other instances, the malpractice isn’t an injury but rather a misdiagnosis or delayed diagnosis. For these reasons, Florida follows the “discovery rule,” which allows for the two-year clock to begin on the date the patient discovered, or reasonably should have discovered, the medical malpractice.
The Discovery Rule
The discovery rule comes into play fairly often in Florida. Some common examples of when the rule comes into play include the following:
- Foreign objects left in the body after surgery           Â
- Misdiagnosis or delayed diagnosis of a serious illness       Â
- Unexplained post-surgery complications     Â
- Imaging or lab errors discovered only after a second opinion
Sometimes, complications from these errors don’t arise for years, particularly in areas like radiology, oncology, and surgery. In those cases, the law allows what’s called tolling—the two-year clock can restart from the date you discovered the error, but only if you can show that you couldn’t have found it earlier, even with reasonable effort.
Other Exceptions to the Florida Statute of Limitations for Medical Malpractice
The two-year deadline is most commonly extended when the discovery rule comes into play, but there are some other instances where exceptions can be made, including when:
- The patient is mentally incapacitated          Â
- The patient is a child under 8 years old
In rare cases, extensions may be provided when the malpractice results from ongoing care from the same healthcare provider. When this does occur, the statute of limitations for medical malpractice in Florida may not begin until treatment ends.
The Florida Statute of Repose
The statute of limitations for medical malpractice in Florida isn’t the only law that limits your eligibility to bring a lawsuit. Our state also has a statute of repose of four years, which serves as an absolute deadline for any medical malpractice lawsuit. In other words, even if you discover the medical malpractice well after it occurred, you will likely not be able to pursue a lawsuit if the discovery is more than four years later.
Exceptions to the Statute of Repose
Although any extension to the four-year statute of repose timeline is rare in Florida, there are some instances where exceptions can be made. If you can prove that the healthcare provider misrepresented facts, committed fraud, or concealed the malpractice, the statute of repose may be extended to seven years.
Examples of intentional misrepresentation, fraud, and concealment include the following:
- Altering medical records to hide an error     Â
- Failing to inform a patient of a foreign object left inside during surgery      Â
- Telling a patient their symptoms are normal despite awareness of an error
- Withholding test results or pathology reports that indicate malpractice
- Falsifying entries in electronic medical records
Proving intentional misrepresentation, fraud, and concealment can be extremely challenging to do independently. An experienced medical malpractice attorney can work with experts to review medical records, question medical staff, review metadata, and obtain internal communications that may help expose deceptive practices.
The Florida Medical Malpractice Statute of Limitations for Minors
The rules for pursuing medical malpractice cases in Florida are different for young children. Parents of minors under eight years old have until the child’s eighth birthday to file a medical malpractice lawsuit regardless of the two- or four-year restrictions for other malpractice cases.
The most common cases where this rule comes into play are for birth injuries and developmental disabilities that are not apparent until years after the malpractice occurred. However, in cases where the parents were aware of the injury or reasonably should have been aware, the standard two-year deadline may still apply.
Filing a Medical Malpractice Lawsuit in Florida
Medical malpractice lawsuits differ significantly from other personal injury cases in Florida. Our state has a strict procedure to follow, which makes the two-year window for pursuing your case even tighter. The filing process includes the following steps.
Consultation and Case Review
One of our medical malpractice attorneys will sit down with you, review your case, and determine your legal options. During this time, your attorney will look at your medical records, determine whether they can prove that malpractice occurred, identify potentially liable parties, and possibly consult a medical expert to review your records.
Pre-Suit Investigation Period
In Florida, you and your lawyer are required to conduct an investigation to determine whether there are reasonable grounds to believe that the medical provider was negligent and that you were injured as a result. You’ll need to obtain an opinion from a medical expert to present at the time you file the Notice of Intent to Initiate Litigation.
Notice of Intent to Initiate Litigation
Florida law requires you to notify each potentially liable party in writing of your intent to sue before you file the lawsuit. The Notice of Intent will include a brief description of the malpractice, copies of all relevant medical records, and a verified written medical opinion confirming the belief that the malpractice occurred.
Once the Notice of Intent is served, Florida law requires a 90-day period for each potentially liable party to conduct an internal investigation. During this period, the statute of limitations for medical malpractice in Florida is frozen. The potentially liable parties have to provide a written response within this 90-day period, either rejecting the claim, offering a settlement, or offering to arbitrate.
Filing the Lawsuit
If your case is denied or unresolved after the 90-day period, you can then file a lawsuit. Keep in mind that the Notice of Intent to Litigate does not stop the clock on the two-year deadline. Your lawsuit has to be filed within the remaining time on the statute of limitations, not counting the 90 days allotted for internal investigation.
Contact a Medical Malpractice Attorney Today
It’s an unfortunate fact that some victims of medical malpractice wait too long to file a lawsuit or assume they’ll receive an extension on their deadline without clear cause. Receiving the sense of justice and compensation you deserve requires fast action and an experienced medical malpractice attorney who can help you meet your pre-suit requirements in a timely fashion.
Lesser, Landy, Smith & Siegel, PLLC, has proudly protected the rights of medical malpractice victims in Florida for nearly a century. We’ll be your fiercest advocates as you seek accountability for your injuries. Contact us today for your free case review.
