Medical Malpractice:

The Statute of Limitations

By: Manal Abraham and Rebecca Slowik
Facts -- Overview
Medical malpractice cases are difficult to pin point. Each case is fact specific, therefore,
there are no clear lines drawn as to when the statute of limitations begin to run. Typically, a
person has two years after the discovery of an incident to bring forth a case. However, the
issue here occurs when the court goes about interpreting and deciding this, and whether
each interpretation is reasonable or if a clearer guideline should be established and set as
the over-all ruling factor for each medical malpractice case dealing with the running of the
statute of limitations.
Issues
1. Is the time period of the statute of limitations a
reasonable amount of time to bring a medical
malpractice claim?
2. Does the statute of limitations for medical
malpractice need to be more clearly defined as to
when the two year period begins?
Fla. Statute 95.11
An action for medical malpractice shall be commenced within two years
from the time the incident giving rise to the action occurred or within two
years from the time the incident is discovered, or should have been
discovered with the exercise of due diligence
The term due diligence refers to judgement or prudence that a person would reasonably be
expected to do under particular circumstances. This statute illustrates that the
commencement of the statute of limitation begins to run depending on different
circumstances.
This statute presents an unclear view of when exactly the statute of limitations begins to
run, therefore a clearer definition is needed in order to give an accurate beginning as to
when the statute of limitations will run when an incident occurs.
Fla. Statute 766.102(1)
In any action for recovery of damages based on the death or personal injury
of any person in which it is alleged that such death or injury resulted from
the negligence of a health care provider as defined in s.766.202(4), the
claimant shall have the burden of proving by the greater weight of evidence
that the alleged actions of the health care provider represented a breach of
the prevailing professional standard of care for that health care provider.

This statute tells us that the claimant must show that malpractice occurred by only the
negligent actions of the health care provider and nothing or no one else.
The Reason for the 2 years Statute of
Limitations Period:
According to Florida Medical Malpractice and the statute of limitations in
The Florida Bar Journal, the reason behind the two-year statute of limitations
is to curtail frivolous claims, encourage settlement, and reduce the high cost
of medical malpractice insurance. The Florida Comprehensive Medical
Malpractice Reform Act serves as a bar to causes of action by claimants of
medical malpractice. Under Florida law, ordinary negligence a four year
statute of limitations is permitted, however, Florida has codified a two year
statute of limitation for medical malpractice causes of action, with a four
years statute of repose.
Tanner v. Hartog, 618 So.2d 177 (1993)
This is a malpractice suit arising out of the birth of a stillborn on April 1, 1988. The
complaint alleged that when testing Mrs. Tanner the doctors acted negligently in failing
to promptly perform a delivery by C-section at a time when the child could have been
saved.
The issue of this case is ultimately when the statute of limitations began to run. The
complaint alleged that the Tanners neither knew nor should have known "that the
actions and inactions of the defendants fell below the standard of care recognized in
the community" until December 29, 1989.
The Court held that the knowledge of the injury alone does not trigger statute of
limitations. A reasonable possibility that the injury was caused as a result of medical
malpractice must be present as well. The plaintiff must subjectively believe that
medical malpractice is the reason for their injury.
Gonzales v. Tracy, 994 So.2d 402 (2008)
This is a medical malpractice suit involving a surgery that resulted in nerve damage. Dr. Tracey surgically
removed 4 lipomas (fatty tumors), and after that Gonzales was seen by Dr. Tracey every 15 days for a
year. During each visit, Gonzales would complain of pain upon which Dr. Tracey told her the pain would
subside. Ultimately, when the pain did not subside, Gonzales went to see a neurologist who explained her
pain was caused by a nerve that was severed during the surgery. Gonzales then served Dr. Tracey and
Westchester General with a Notice of Intent to Initiate Litigation for Medical Malpractice.
Under the facts of this case, the issue of when the statute of limitations began to run is an issue of fact
that must be resolved by the jury. The jury could conclude that based upon the pain Gonzalez was
experiencing, the statute of limitations began to run immediately or shortly after the surgery. However,
because Gonzalez alleges that Dr. Tracy continually assured her for approximately one year that her pain
would resolve by the end of 2005, the jury could conclude that the statute of limitations did not begin to
run until the end of 2005 because, by that time, Gonzalez had "reason to believe that medical malpractice
may possibly have occurred."
Based on the facts of the case, the determination of when the statute of limitations begins to run is for a
jury to determine as the fact-finders of the case.
Answer
In looking at the statutes, article, and cases we presented above, it is clear that
the statute of limitations varies for each case.
For the plaintiff to prove medical malpractice, the plaintiff must reasonably and
subjectively believe that the only possible reason for the injury is due to the
malpractice of the physician.
The two year period for medical malpractice statute of limitations does not
commence until the incident occurs or when the injury should have been
discovered.
The two year time period for the statute of limitations is a reasonable amount of
time for medical malpractice suits, however, clearer guidelines and boundaries
should be established as to when the statute of limitations begins.