Florida’s Statute of LImitations for medical malpractice, also part of 95.11(4)(b), is 2 years from the time the malpractice “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….”
To get beyond the maximum 4 year SOL limit, the Plaintiff must demonstrate 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 SOR cap.
The Bottom Line: All medical negligence claims must be brought within two years of the date the Plaintiff knew or should have known of the malpractice. Where fraud exists, a claim can be brought up to seven years from the malpractice. Be careful here. The Statute of Repose does not mean that every case involving fraud can be brought up to seven years from the date of the malpractice. Regardless, the SOL begins running when malpractice was or should have been discovered. If, for example, the malpractice is discovered with 4 years remaining under the Statute of Repose, the malpractice case must still be brought within two years of the discovery date.
(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)
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Establishing the time limit for instituting a claim for medical negligence takes experience and knowledge. A lawyer should always be consulted, without delay, on this critically important issue. Contact our office today for a free, confidential consultation to learn your legal rights.
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.