While victims of medical malpractice in Florida have clear legal rights, they must be sure to assert their rights before they run out of time. Strict deadlines apply to all medical malpractice claims under Florida law, and patients and families who wait too long do not get a second chance.
So, if you have a medical malpractice claim in Florida, how long do you have to file?
The answer to this question is more complex than you might think. Different deadlines apply in different circumstances, and there are multiple steps you must take before you can file a lawsuit in court. With this in mind, it is important to take action promptly, and if you have questions about filing a medical malpractice claim, we strongly recommend scheduling a free consultation as soon as possible.
Understanding Florida’s Deadline for Filing a Medical Malpractice Claim
We’ll begin by taking a look at the standard statute of limitations for medical malpractice claims in Florida. After that, we’ll look at two important exceptions to the general rule. Then, we’ll walk through the process of filing a medical malpractice claim step-by-step before discussing three key eligibility criteria for taking legal action.
The General Rule: Patients and Families Have Two Years to File In Most Cases
Like many states, Florida has established specific deadlines and other timing requirements for medical malpractice claims against hospitals, doctor’s offices, and other healthcare providers. The main deadline that applies to medical malpractice claims is the statute of limitations. Here is the general rule:
“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 . . . .”
If you find this confusing, you are not alone. This language is far from straightforward, and it effectively establishes different deadlines in different circumstances. Here are the three main scenarios:
- If the malpractice is immediately apparent, the two-year statute of limitations starts ticking on the date the malpractice occurred. To take an egregious (but alarmingly common) example, let’s say your doctor performed a surgical procedure on the wrong part of your body. In this scenario, you would most likely have two years from the date of your procedure to file a claim.
- If the malpractice is not immediately apparent, the two-year statute of limitations is delayed. Let’s say the error was not immediately apparent. Maybe your doctor provided an incorrect diagnosis that led to a delay in treatment. In this scenario, you would generally have two years from the date that you either learned or should have learned of your doctor’s mistake.
- Even when the two-year statute of limitations is delayed, you still have no more than four years to file a medical malpractice claim. Regardless of when you discover that your doctor made a mistake (subject to a key exception discussed below), the maximum amount of time you have to file a medical malpractice claim is four years from the date of the “incident or occurrence” that caused you harm.
As you can see, the deadline for filing a medical malpractice claim in Florida generally depends on when you discover that you have (or may have) grounds to take legal action. Importantly, however, regardless of when you begin to have concerns about medical malpractice, it is important that you speak with a lawyer as soon as possible. As we discuss below, there are steps you need to take before you can file a claim, and, in any case, taking action promptly will help give you the best chance of recovering just compensation as soon as possible.
Exceptions to the General Rule: When Patients and Families Have More Than Two Years to File
While the general rule is that you have up to two years to file a medical malpractice claim in Florida, there are exceptions. One exception applies in cases involving young children, while the other applies in cases involving “fraud, concealment, or intentional misrepresentation” by your healthcare provider:
Medical Malpractice Claims Involving Young Children
In cases involving young children, parents may have until their child’s eighth birthday to file a medical malpractice claim. While this most often applies in cases involving birth injuries, parents can file claims under this provision of the law in cases involving other injuries and illnesses as well.
This exception overrides the four-year deadline for filing a claim when the effects of medical malpractice are not apparent right away. According to the statutory language, “[the] 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.”
Cases Involving “Fraud, Concealment, or Intentional Misrepresentation”
Florida’s statute of limitations for medical malpractice claims also includes an exception for cases involving “fraud, concealment, or intentional misrepresentation.” Here, the statute states:
“In those actions . . . in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury 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 . . . .”
The statute also makes clear that this seven-year limitation period does not apply to claims filed before a child’s eighth birthday. If you suspect that your, your child’s, or another loved one’s healthcare provider has attempted to cover up a medical mistake, we strongly encourage you to speak with one of our lawyers right away.
The Timeline for Filing a Medical Malpractice Claim in Florida
Now that we’ve covered Florida’s statute of limitations and the various deadlines for filing medical malpractice claims, let’s take a look at the overall timeline of a medical malpractice claim in Florida. This is important for a couple of reasons. First, as we said above, there are steps you need to take before you can file a lawsuit in court. Second, if you have a medical malpractice claim, it is important to make sure you know what you can expect. The process takes time. But if your claim is successful, it will be well worth it in the end.
Here is an overview of the major steps involved in pursuing a medical malpractice claim in Florida:
1. You Have Concerns About Medical Malpractice
The process begins when you have concerns about medical malpractice. If you have any concerns about the care you or a loved one received in a Florida medical facility, you should seek a diagnosis elsewhere, and you should talk to a lawyer as soon as possible.
2. Conducting a Presuit Investigation
Before a lawyer can file a medical malpractice claim on your behalf, the lawyer must conduct a presuit investigation. This is a legal requirement in Florida that is designed to prevent frivolous claims.
3. Serving a Notice of Intent to Sue
If the evidence gathered during your lawyer’s presuit investigation supports filing a medical malpractice claim, your lawyer must then serve a Notice of Intent to Sue on the healthcare provider that is responsible.
4. The Statute of Limitations is “Tolled” for 90 Days
Once your lawyer serves the healthcare provider with a Notice of Intent to sue, this “tolls” the statute of limitations for 90 days. This gives the healthcare provider time to evaluate the claim without taking time out of your window for taking legal action.
5. Filing a Medical Malpractice Lawsuit
After these 90 days, your lawyer can file a lawsuit on your behalf in court. This is the step you need to take before the statute of limitations expires.
6. Negotiating with the Healthcare Provider’s Insurance Company
Many (but not all) successful medical malpractice lawsuits settle, and settling generally involves negotiating with the healthcare provider’s insurance company. After calculating the damages you are entitled to recover, your lawyer will negotiate for a fair settlement on your behalf.
7. Taking Your Medical Malpractice Claim to Court (if Necessary)
If a fair settlement is not on the table, your lawyer will be prepared to fight for just compensation at trial when the time comes. While relatively few medical malpractice cases go to trial, it is important to be prepared if this is what it takes to seek the financial compensation you deserve.
3 Key Eligibility Criteria for Filing a Medical Malpractice Claim in Florida
While medical malpractice is far more common than it should be, not all medical mistakes rise to the level of malpractice. Sometimes doctors need to make judgment calls based on the available information, and sometimes it is reasonable for them to make the wrong call.
But, in many cases, medical mistakes are not reasonable. In fact, in far too many cases, doctors make mistakes that could—and should—have been avoided. With this in mind, the basic eligibility criteria for filing a medical malpractice claim in Florida are as follows:
- Diagnosis with a Medical Condition Linked to Medical Negligence – To file a medical malpractice claim, you must have evidence that your (or your loved one’s) healthcare provider made a mistake that rises to the level of medical negligence. If you have a claim, your lawyer will be able to gather the evidence you need.
- Meeting the Statutory Requirements (Presuit Investigation and Notice) – Before you can file a medical malpractice claim, you must first meet the statutory requirements of conducting a presuit investigation and serving a Notice of Intent to Sue. Your lawyer can take these steps on your behalf as well.
- Filing Your Medical Malpractice Lawsuit Before the Statute of Limitations Expires – Finally, you must file your medical malpractice lawsuit before the applicable statute of limitations expires. As we discussed above, if you wait too long to take legal action, you will not get a second chance to seek the financial compensation you and your family deserve.
In all cases, talking to an experienced medical malpractice lawyer is the first step in the process. It costs nothing to find out if you have a claim—and, if you do have a claim, your lawyer will seek financial compensation on your behalf at no out-of-pocket cost to you.
Do You Have a Claim? Schedule a Free Consultation with a Florida Medical Malpractice Lawyer Today
If you need to know more about filing a medical malpractice claim in Florida, we strongly encourage you to get in touch. To schedule a free consultation with an experienced Florida medical malpractice lawyer at Silva & Silva, please call 305-445-0011 or contact us online today.