A recent South Florida case shows how even attorneys sometimes misunderstand how the
Statute of Limitations applies to a medical malpractice case.
Ordinarily, the Statute of Limitations (time within which one must file a lawsuit, or the case is
forever barred) for an accident case is four (4) years.
Medical malpractice cases have a different set of timetables;
The Statute of Limitations, in most cases, is two years from the date the injured party (or a family member in case of death), knew or should have known of the malpractice.
Additionally, before filing a medical malpractice lawsuit in the state’s civil court system, you are required to notify, in writing, each prospective health care provider(s) that the claimant is planning to sue) of the intent to file the lawsuit. The defendant health care provider then has a 90-day (pre-suit period) to investigate the claim.
Only then, and not before, a lawsuit can be filed.
What Happens When Your Attorney Gets It Wrong?
A patient was transferred from a local hospital to a residential treatment facility in Broward County. Before the transfer, the patient was being administered seven medications; a prescription for the medications was provided to the receiving facility. The receiving residential treatment facility failed to administer the medications, and the patient died four days after the transfer from “a severe withdrawal syndrome.”
But, this is where the mistake was made: The lawyer for the Estate of the person who died failed to comply with the pre-suit requirements and failed to file a complaint within the two-year statute of limitations. The Estate’s attorney argued that this was not a malpractice (medical negligence) case; rather that it was an ordinary negligence case (they negligently overlooked the prescription) and the four-year Statute of Limitations applied, not the two-year malpractice statute and pre-suit notice requirement.
The appeals court rejected this argument and declared that a claim for medical malpractice is a
claim arising out of the rendering of, or the failure to render medical care or services.
In this case, the court ruled “To prove the claims, the plaintiff must show that the hospital and
treatment facility breached the professional standards of care in failing to ensure that plaintiff
received her medications and failing to recognize the danger of withdrawal symptoms“.
Not all cases are the same, and not all attorneys have the same level of expertise. Medical malpractice is a highly technical and specialized field; many traps for the unwary exist.
Bear this in mind when hiring an attorney. Then call Hoffman, Larin & Agnetti, P.A. at (305) 653-5555 for a Free Consultation.
Read about the Pitfalls in Medical Malpractice before filing.