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Florida’s 90 Day Tolling Period in Medical Malpractice Actions for “Potential Defendants”

Florida’s medical mcalendaralpractice law is very complicated as there are many procedural requirements set forth in Chapter 766 of the Florida Statutes. If these rules are not strictly followed, the court may strike pleadings and, in a worst case scenario, a potential lawsuit may subsequently be barred by the applicable statute of limitations.

An early stage in any medical malpractice action is a process called “pre-suit.”  During pre-suit, one of the statutory requirements is that you put potential defendants on notice of your intention to initiate litigation.  No lawsuit can be filed for a period of 90 days, and during this 90 days, the statute of limitations is tolled.  (This tolling period can be further extended an additional 90 days by filing an extension of the statute of limitations.)  When the pre-suit 90 day period is completed, the claimant can file a medical malpractice lawsuit within either the remainder of the original statute of limitations period, or 60 days, whichever is greater.

Although this process seems relatively straightforward, there have been disputes over the precise meaning of the statute and how the tolling periods applies.  It is clear from Section 766.106(3)(a) that the statute of limitations is tolled for 90 days for potential defendants who have been served with the notice of intent; however, an issue arises as to whether this tolling period also applies to defendants who have not been served with a notice to intent to sue.

Recently, the Third District Court of Appeal issued a ruling answering this question. Salazar v. Coello, 2014 WL 7156859 (3rd DCA 2014).  The Court held that Section 766.106(3)(a) tolls the statute of limitations for all likely defendants, even if they were not served with a notice of intent to initiate litigation.  Id.  The Court undertook an extensive review of the Florida Statutes and concluded that the Florida Legislature intended that the statute of limitations is tolled as to any defendant, even those who were not originally served with a notice of intent.  Id.  The Court further reasoned that the Florida Legislature did not intend for there to be any difference between the terms “prospective defendant” and “potential defendant” that are used in the statute.  Id.

This is an important ruling because, as in the Salazar case, if the statute of limitations was not tolled during this 90 day period, the notice of intent would have been filed after the expiration of the statute of limitations, and consequently, any subsequent pleadings would likely have been stricken.  Thus, the Plaintiff ultimately would not have been able to hold a potentially negligent party accountable for medical negligence.

Add comment January 23rd, 2015

Federal Court Allows Cruise Line to be Sued for Medical Malpractice

rci_rd_exterior_1On November 10th 2014, the Eleventh Circuit overturned the long-standing rule that cruise lines could not be sued for medical malpractice.  In Franza v. Royal Caribbean Cruises, 2014 WL 5802293 (11th Cir. 2014), the Eleventh Circuit allowed a Plaintiff to sue a cruise line for the alleged medical negligence of the onboard ship doctor and nurse.  This is a remarkable ruling because, since 1988, both federal and state courts have held that parties were not allowed to sue cruise lines for the medical negligence of its ship doctors and nurses.  The long standing rule was adopted by the Fifth Circuit in Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988), which held that cruise lines could not be vicariously liable for the negligence of its ship doctors or nurses because it could not exercise the required “control” over these individuals.

In Franza, the Eleventh Circuit declined to adopt the Barbetta rule and allowed the Plaintiff to sue Royal Caribbean Cruises for the alleged medical negligence of its ship doctor and nurse.  The Court reasoned that, since 1988, the world of maritime commerce has changed immensely.  Modern legal norms, the complexity of the cruise industry, and modern technology abolished whatever value the Barbetta rule once had.  The Court held that, “we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked modern infirmaries and urgent care centers.”

This ruling is important for several reasons.  First, this decision is groundbreaking in its field because it opens up a new venue for medical malpractice lawsuits against cruise ships.  Additionally, this ruling poses a potentially game-changing problem for cruise lines.  Some cruise lines have actually required its passengers to agree to forum selection clauses indicating the United States District Court for the Southern District of Florida as the only court with jurisdiction.  Presumably one of the reasons behind this decision was to avoid putative lawsuits for medical malpractice of ship doctors and nurses.  As such, this ruling is a victory for cruise line passengers who seek to hold ship doctors and nurses responsible for negligent medical treatment and care.  There is now a conflict among the Circuit Courts, and since there is no binding Supreme Court ruling on this issue, there will likely be future litigation on this topic.

Add comment November 24th, 2014

If an action “arises out of medical diagnosis, treatment, or care” you must follow pre-suit requirements

GurneyRecently, in Buck v. Columbia Hospital Corp. of South Broward, Case No. 4D13-2165 (Fla. 4th DCA) (September 10, 2014), the Fourth DCA affirmed the dismissal of a complaint for failing to comply with the pre-suit requirements of Chapter 766 of the Florida Statutes. The issue was whether this cause of action was ordinary negligence or medical negligence.  This distinction is essential because when there is medical negligence, you are required to follow the pre-suit requirements set forth in Chapter 766.  Failure to comply these requirements may result in a dismissal of the complaint.  Unfortunately, this is exactly what happened in this case.

In Buck, the Plaintiff alleged that while the decedent was being transported from a gurney to an x-ray table at a hospital, hospital employees dropped her onto an x-ray table causing a lumbar spine fracture.  Buck alleges that this eventually caused the decedent’s death. The hospital moved to dismiss the complaint for failing to comply with pre-suit requirements and the trial court granted the motion.  The Fourth DCA affirmed this decision.

The Fourth held that a claim for negligence is subject to the pre-suit requirements of Chapter 766 if, “the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” The Court further reasoned that, “[w]hen determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment, or care.”  The Court held that the Plaintiff’s cause of action alleged medical negligence because hospital employees were engaged in the “rendering” of medical care and services when they lifted the decedent from the transport gurney and placed her on the x-ray table as part of a medical procedure.

This case illustrates that it is absolutely essential to hire knowledgeable, experienced, and skilled medical malpractice attorneys when dealing with matters involving medical negligence. If Buck had complied with the pre-suit requirements of Chapter 766, it is likely that the complaint would not have been dismissed.

Add comment October 22nd, 2014