The statute of limitations period in medical negligence cases is more flexible than most other areas of Florida law. The standard time frame in which to file a medical negligence action is two years from the date of the incident.1 And it is usually wise to calculate the statute of limitations periods using this strict time period. But what if a client comes to you more than two years after the negligent incident with devastating injuries? Is there any hope for their claim?

Let’s say a young couple comes to you asking for help with their four-year-old son who still can’t talk, has difficulty walking, behavioral issues, and learning disabilities. At birth, the child was in severe respiratory distress. The parents— having no medical training and being in shock over the rush of dramatic events that took place in the hospital—head home with their newborn after discharge with a diagnosis of hypoxic ischemic encephalopathy and with daunting uncertainty about what their son’s life will look like.

The parents, unable to face the emotional trauma of what happened, direct all their energies on figuring out their child’s future: the diagnoses; the limitations; and the treatments that may give their first child a fighting chance. Then, one day, as their special needs four-year-old is giving them a few minutes of rest during nap time, the mother is browsing through forums for similar mothers of disabled children. A fellow fighting mother makes a suggestion: investigate a civil lawsuit. The parents call your office asking for help. Is there anything you can do four years later?

Enter the discovery doctrine, which provides for a two year limitations period that begins when the patient (or his or her representative) discovers that there is a reasonably possibility of negligence. Negligent acts that occur more than two years prior may still be prosecuted up until four years after the date of the incident.2 For minors, the repose period is extended until the child is eight years old.3 And with the ability to automatically extend the statute of limitations by 90 days, upon petition to the clerk of the court where suit will be filed, comes the ability to extend the statute of repose by 90 days as well.4

The Florida Supreme Court has defined the knowledge necessary to begin the two year period this way:

“[K]nowledge 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.”5

This rule applies to cases in which there is a dispute as to whether the nature of the injuries were caused by malpractice or other non-negligent causes (which are the majority of medical negligence cases).6

The analysis of the when the statute of limitations is triggered in medical negligence claims is complex. It takes into account a variety of factors like: the type of injury; the possibility and knowledge of natural causes of the injury; misleading statements made by medical providers; the patient’s knowledge, education and awareness of the malpractice; the patient’s mental competence; and sometimes the knowledge of the person with standing to bring the lawsuit.7 However, this discovery doctrine affords a patient the opportunity to bring a lawsuit beyond the stricter two-year-from-injury period in situations where the patient could not yet reasonably appreciate the possibility of medical negligence.

Let’s briefly turn back to our story. Can you help these parents who have come to you as a last-ditch effort for help? Maybe. It’s not going to be an easy fight. There is no guarantee that the jury (or judge) will side with you. But nothing is ever easy in the pursuit of justice. You have legal tools that help. You have the discovery doctrine as a potential argument. You have some hope for these parents.

1 “An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred…” § 95.11, Fla. Stat. (2018).

2 “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.” § 95.11, Fla. Stat. (2018).

3 “[T]his 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.” § 95.11, Fla. Stat. (2018).

4 “Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.” § 766.104, Fla. Stat. (2018); See also Musculoskeletal Inst. Chartered v. Parham, 745 So. 2d 946 (Fla. 1999) (Tolling provisions applicable to the statute of limitations in medical malpractice actions are equally applicable to the statute of repose).

5 Tanner v. Hartog, 618 So. 2d 177, 181–82 (Fla. 1993).

6 “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.” Id.

7 See the concurring opinion by Justice Gerald Kogan in Tanner, as well as Tanner’s progeny, for more detailed guidance on the issues relevant to this analysis.

At Paul Knopf Bigger, we passionately represent individuals across the country who have been seriously injured by medical malpractice, defective products, drugs, and medical devices, or the negligence of others.