How Long do You Have to File a Medical Malpractice Lawsuit in Florida?

Whenever we seek medical treatment for an injury or an illness, we are putting our trust in our chosen medical care provider to heal us to the best of their ability.  There is a medically accepted standard of care that has been established for treating most ailments. 

What happens, however, when a physician negligently deviates from the accepted standard?  If this negligence results in a severe injury, you may be entitled to seek restitution for your injury by filing a medical malpractice claim.  If you do choose to pursue a medical malpractice claim, you may be wondering: how long do you have to file a medical malpractice lawsuit in Florida? 

Read on for more information, and to understand how you can preserve your potential malpractice claim.

What is the Statute of Limitations for Medical Malpractice?

Your ability to bring any type of lawsuit in Florida is limited by the statute of limitations. The statute of limitations is a boundary set by the State which governs how long an injured party has after an injury to bring a claim.  The intention behind these boundaries is to increase judicial efficiency by limiting frivolous lawsuits, among other reasons for instituting the time limit.  

For most personal injury claims, a potential plaintiff has four years from the date of the injury to bring their lawsuit. However, medical malpractice cases are generally governed by a much shorter two-year statute of limitations.

This means that the claim must be brought within two years of when you knew or should have known that an injury occurred during treatment and that there was a reasonable possibility that medical negligence was the reason for the injury.

What if I Do Not Discover an Injury Until Well After My Treatment?

If you received treatment for an injury or illness in which the care provider acted negligently, the sad fact is that not all conditions present immediately.  Therefore, patients are offered the chance to file a medical malpractice lawsuit for two years after the condition was discovered or should have been known to the patient.  There is a limit to this extension, however.

What is the Statute of Repose?

Florida also has a four-year statute of repose on most medical malpractice claims. This means that virtually all claims will be barred regardless of whether or not the plaintiff knew or should have known about the existence of the injury if it is not brought within four years from the date the injury occurred. 

The reason that these protections were put in place was to curtail frivolous lawsuits, promote a settlement to improve judicial efficiency and reduce the high costs of medical malpractice insurance to care providers.

One of the only exceptions to the four-year statute of repose is where there is evidence of fraud, concealment, or misrepresentation regarding the injury that is the subject of the claim.  Under such circumstances, the statute of repose could be extended to seven years.  This protects patients’ rights by providing them with an additional three years to file their claim past the initial statute of repose.

What if My Child Develops an Injury Over Time?

Medical malpractice claims involving injuries to children are generally governed by special rules that may set them outside of the standard two-year statute of limitations. This is because some types of injury may not be apparent to a young child until the child has had some time to mature. 

The statute of limitations is tolled for children under the age of 8 years who sustain injuries during infancy.  Thus, claims for injuries that become apparent as the child develops are protected under Florida law.  The parents will have two years after the condition is discovered to file a malpractice claim.

Children who experience injuries to the brain or spinal cord due to negligent care prenatally, during birth, or during their immediate postnatal care may be entitled to apply for the NICA fund program. 

NICA (Neurological Injury Compensation Association) provides eligible families a one-time initial payment of $250,000, with reimbursement for any medically necessary and reasonable expenses related to care throughout the child’s life.  Due to the nature of the claims involved with filing a NICA petition, the petition must be filed before the child’s 5th birthday to be considered.

Can My Attorney Do Anything to Preserve My Claim?

If you are nearing the statute of limitations when filing your claim, be very upfront with your attorney about the exact timeline.  Request a face-to-face meeting with them to preserve your working relationship and discuss possible options.  If your case has nearly run the statute, the attorney will want to make sure that the risk of taking on your case will be worth pursuing for all parties involved.

If it is perceived that you have a viable claim, the first step that the attorney will need to make during the pre-suit investigation phase will be to file a petition, which will grant an automatic 90-day tolling period on the statute of limitations.  This petition will provide time to procure all records related to the claim and is also designed to encourage settlement of the claim being filed.  

Once the petition has been filed, the plaintiff’s attorney must file a notice of intent to initiate litigation to each potential defendant in a case.  Filing this notice adds an additional 90 days to the statute of limitations, regardless of when the tolling period is set to end.  No lawsuit can be filed during this time. 

Once all parties have been notified of a potential medical malpractice claim, they can enter negotiations to extend the timeline of a lawsuit.  If this claim is rejected, your attorney must file suit within 60 days of receiving notice of the rejection, or within the remainder of the time of the statute of limitations, whichever period is longer.  Your attorney will need to practice meticulous management of your case timeline to preserve your claim if the statute of limitations is close to running.

How Carey Leisure & Neal Can Help

The application of Florida’s statutes of limitations and repose to your situation likely requires the experience and skill of a Florida attorney experienced in medical malpractice matters. Medical negligence cases are complex and often take several weeks or months to obtain the medical records and investigate whether a potential case has merit.  Therefore, it is crucial that if you believe that you have been the victim of medical malpractice you contact an experienced attorney to discuss your situation as soon as possible.  

At Carey Leisure & Neal, our team has been representing victims of medical malpractice for nearly 40 years.  Our experienced medical malpractice attorneys will be able to investigate your case and protect your claim from the harsh results that can be consequences of filing a medical malpractice claim outside the statute of limitations.  You do not want to hire a firm that may mismanage the timeline on your claim, a mistake that could forever bar your injury claim.  If you find yourself asking “how long do you have to file a medical malpractice lawsuit in Florida?”, call our team today for a free consult to see if you have a viable medical malpractice claim.

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