Statute of Repose and Florida Medical Malpractice/Negligence Claims

doctor.jpgUnder no circumstances may a civil action alleging medical malpractice/negligence be started in Florida more than seven years from the date of the incident or occurrence out of which the action accrued. This 7-year limitation is imposed by what is called a statute of repose, set forth in Florida Statute 95.11(4)(b). This is not to say that every medical negligence claim can be instituted up to seven years from the date of the incident or occurrence out of which the action accrued. Most cannot.

The time limit for starting most medical malpractice cases is controlled by the section of 95.11(4)(b) that provides as follows: “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 from the date of the incident or occurrence out of which the cause of action accrued….” This is Florida’s medical negligence statute of limitations. It is not the same thing as the statute of repose.

How is the 4 year sol limit stretched to 7 years? By showing that “fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury….” id. When the burden is met, “the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.” Hence, the 7 year cap.

(IMPORTANT NOTE: Nothing shall bar an action brought on behalf of a minor on or before the child’s eighth birthday. 95.11(4)(b))

Summary:

  • Absent fraud, concealment, or intentional misrepresentation of fact, a claim for medical malpractice must be commenced within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.
  • Absent fraud, concealment, or intentional misrepresentation of fact, the outside time limit for commencing an action for medical malpractice is 4 years.
  • The outer limit for bringing a medical malpractice claim is 7 years. Fraud, concealment, or intentional misrepresentation must be shown to get beyond the 4 year sol limit.

Many people have come to wrongly believe that all actions for medical malpractice must commence within 2 years from the time the incident giving rise to the action occurred. This limit may apply in a large number of cases, but not all.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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