"IT AIN'T OVER
'TIL IT'S OVER"

A PHYSICIAN'S PRIMER
ON THE STATUTE OF LIMITATIONS

AS A MEDICAL MALPRACTICE DEFENSE LAWYER, one of the first questions I am asked by a physician worried about a claim is when the statute of limitations runs.  Many physicians have heard that the statute of limitations -- the time in which someone can bring a claim -- is two years.  Accordingly, they assume that, two years and one day following an adverse event, they are out of the woods.  Unfortunately, this is not the law.

Florida Statute 95.11 does indeed define the period of limitations as two years.  However, it is two years from the time a reasonable person knew or should have known of the possibility of medical negligence.  This timeframe frequently is very hard to determine.  Much of the time it is up to a jury to decide, leaving no practical benefit to a physician.  Common sense tells us that, if a jury is faced with a close question and thinks that a physician is responsible for wrongdoing, the physician will not escape on a "technicality" like the statute of limitations. 

Of course, a statute of limitations defense certainly is not a technicality.  It is a public policy judgment that is present in virtually every type of litigation.  It provides finality, allows for a reasonable defense by assuring some chance that people will remember important events, and brings stability to our civil justice system.  Be that as it may, you get the picture -- if a statute of limitations question goes to the jury, chances are it is probably going to be a tough sell for the defense. 

Frequently, when the statute of limitations commences is hard to determine before a lawsuit actually is filed.  In Florida, we have presuit screening in malpractice cases that is designed to weed out frivolous claims.  However, information gleaned in presuit cannot be used once a lawsuit commences.  It is privileged information and must be recreated in the subsequent lawsuit.  Likewise, interviews done in presuit, called "unsworn statements," are available to both sides of a potential lawsuit, and cannot be used for any purpose if there is subsequent litigation.  Thus, establishing in presuit when someone knew or should have known of the possibility of negligence may not provide the final word. 

Even once the lawsuit commences, it often is difficult to determine when the statute of limitations begins to run.  If the alleged negligence is obvious -- for example, if the surgeon cuts off the wrong leg -- the statute of limitations will begin to run at the time of the event.  However, these cases are relatively rare.  Likewise, if a physician admits negligence and documents it in the record, one might say that the statute begins to run at that point in time.  However, the patient certainly could deny that the physician specifically admitted wrongdoing, possibly postponing the time that the statute of limitations begins to run.  Furthermore, even if a surgeon discusses a bad surgical outcome with a patient -- for example, if the surgeon takes the position that the outcome was a complication of the procedure and did not result from negligence -- that will not necessarily trigger the start of the statute of limitations.

In a cancer misdiagnosis case, for example, when a chest x-ray allegedly is read incorrectly, the statute of limitations does not begin, at least, until the patient knows of the original potential misdiagnosis.  It may not even commence at that point in time if the original misdiagnosis is attributed by health care providers to factors other than negligence.  Likewise, the statute of limitations will not begin to run on an incapacitated person (for example, someone who is injured by a stroke and is neurologically profoundly impaired) until a guardian is appointed for that person, which may be well after the adverse event.

There is an outer limit to the time that a physician is exposed in malpractice.  As we discussed, Florida's statute of limitations, Fla. Stat. 95.11(4)(b), establishes two years from the time from when one knew or should have known of the possibility of malpractice within which one can bring a claim.  The statute of repose, also found in Fla. Stat. 95.11(4)(b) cuts off a cause of action at a finite time, even if it has not yet accrued under the statute of limitations.  Four years after an event, unless there is fraud, the statute of repose will eliminate any potential claim, even if the patient could not have know of the wrong.  If the claim is brought on behalf of a minor, the repose period lasts until the child's eighth birthday.

An example of this repose concept is an adult patient who receives AIDS from a negligently screened blood transfusion.  If the patient has a transfusion and then develops AIDS five years later, the patient has no claim, even if the patient were to initiate legal action on the very day she discovered the negligence.  This is because the statute of repose says that, after four years for adults, there is no claim cognizable at law unless there is fraudulent concealment.  Mere failure to diagnose is not the same as frauduelent concealment.

Fraudulent concealment contemplates a physician who learns of a mistake, but then delays in telling the patient.  Say a chest x-ray shows a lung lesion.  The lesion is missed, and three years later the physician recognizes the original error, but still does not tell the patient.  In this circumstance, the patient has seven years from the date of the encounter to bring a claim.  In other words, the statute of repose is four years from the date of the incident, regardless of whether the patient knew or should have known of the possibility of malpractice, unless there is concealment, in which case the statute of repose is extended to seven years.

Thus, there are two concepts in play. The statute of limitations runs from the time a patient knew or should have known of the possibility of malpractice.  The statute of repose extinguishes a claim, regardless of when or even if the patient knew of the possibility of malpractice, as a matter of public policy.

Although the statute of repose may seem harsh, it is the law.  Like the statute of limitations, the statute of repose provides a way for physicians to order their affairs, and it provides a point of time in which a physician can be assured that no claim will be brought.  Although its application occasionally seems unfair, there is sound public policy embodied in some finality.

Physicians also need to understand that there are ways to toll, or freeze in time, the running of the statutes of limitations and repose.  Even before a notice of intent (the letter potentially initiating a lawsuit) is sent to a physician, the plaintiff can obtain an automatic 90-day extension of the statute of limitations.  This is done by filing a pleading in the courthouse in which the action may be brought, indicating that the extension is sought.  No notice need be given to the potential defendants.  This act of filing alone will extend the statute of limitations for 90 days.

The purpose of this 90-day extension is to address a claim that comes to a plaintiff's lawyer late in the game, near the two year timeframe, and with insufficient time on the statute of limitations to accomplish the "reasonable investigation" necessary before a notice of intent can be served.  Again, the 90-day extension is "free."  It cannot be denied, does not require a hearing and does not require notice.  The goal of the tolling is to allow for a reasonable investigation before a notice of intent is served, in which a plaintiff's lawyer must verify that there is valid reason to believe that there is a claim of negligence.  Typically an affidavit accompanies a notice of intent, and the automatic extension is a method to assure a reasonable period of time for a potential plaintiff's lawyer to obtain an affidavit demonstrating that the potential action is not frivolous on its face.

Finally, once presuit screening ends, there is at least 60 days from that time, or the time remaining on the statute of limitations, whichever is longer, within which a plaintiff may file suit.  Once a suit is filed, the law allows 120 days to serve the defendant.  Even that time can be extended when good cause can be shown to the court.  That extension also may be obtained without giving notice to the defendant.

The great Yogi Berra once said, "It ain't over until it's over" and in the complex world of litigation, it may seem that the time for bringing a claim is just that -- never over.  While I doubt Yogi knew much about the intracacies of Florida law and the statutes of limitations and repose, his words cannot help but to come to mind when one is in the thick of a lawsuit.

For this reason, I often advise clients to not try to figure out a date beyond which no litigation may be brought or to worry about a lawsuit until one comes.  Only once the claim comes, will we look backwards and try to figure out if there is a statute of limitations or repose defense.

While we're talking about sayings, it could be said that a statute of limitations defense is "as rare as a hen's tooth."  I think it is reasonable to assume that four years after an incident, the statute of repose likely would bar the action.  However, in the complex world of medical malpractice litigation, Yogi's words ring true time and again.

Tom Dukes is a Board Certified Civil Trial Lawyer and former President of the Florida Defense Lawyers' Association.  You can contact Tom at tdukes@mmdorl.com.