Reyes v. Baptist Health South Florida Foundation, Inc.
3/29/23, Chief Judge Fernandez
Topics: Medical Malpractice, Statute of Limitations, Summary Judgment Standard
This is a huge win for plaintiffs regarding accrual of the statute of limitations for medical malpractice cases. In 2005, a child was born with a neurological injury that the parents allege were caused by the medical malpractice of Baptist. At the time of the pregnancy and birth, the mother was told that her baby was developing normally. The child was diagnosed with cerebral palsy.
In 2008, the mother filed for a petition for extension for filing a malpractice suit under section 766.104(2), Florida Statutes (2008), and she requested medical records pursuant to the medical malpractice statute.
In 2012, the child’s doctor recommended that the mother look into details of the child’s birth as a possible cause for the cerebral palsy. As a result, the mother and father filed the medical malpractice suit in 2013 both as parties and as guardians for the child.
Baptist moved for summary judgment, arguing that the 2008 petition for extension commenced the running of the statute of limitations, and because the mother waited another five years to file suit, it was time barred.
Section 95.11(4)(b), which provides the statute of limitations for medical malpractice actions, states, in pertinent part, that:
- 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, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday…. In those actions covered by this paragraph 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, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.
Case law from the Supreme Court of Florida and the Third District have interpreted the statute to mean that the statute of limitations accrues (begins running) when the plaintiff not only has knowledge of the injury by also “knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.” If the injury is something that could have occurred naturally, the statute does not begin to run until such time as there is reason to believe that medical malpractice may have occurred.
The trial court agreed that the 2008 filing showed that the mother had knowledge of a reasonable possibility that medical malpractice had occurred, that the statute had run prior to the 2013 filing, and the claim was time-barred. The parents appealed.
The DCA cited Florida case law for the proposition that the determination of when a person knew or reasonably should have known of the possibility of medical malpractice is “fact-specific and within the province of the jury, not the trial judge.” The fact that the mother suspected medical malpractice as early as 2008 was not determinative. Suspected wrongdoing is not enough to trigger the statute of limitations. Garcia claimed that until 2012, every medical provider told her that the child’s cerebral palsy occurred from natural causes. Contacting an attorney isn’t enough to trigger the statute. Sending a 766.204 letter requesting medical records isn’t enough. Filing a 766.014(2) petition for an extension is not enough. Instead, it is only enough when the plaintiff possesses knowledge of a reasonable possibility of medical malpractice. And the question of when that point occurs is fact-specific and a matter for the jury. Because there was a genuine issue of material fact as to when the statute began to run, summary judgment was reversed and the case was remanded. (Note: Compare this with the Halum case from the Fourth District below).
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC