Florida DCA Split On MedMal Pre-Suit Notice Deadline

Medical Malpractice

The Florida First DCA in Bay County Board of Commissioners v. Eartha Seeley, Case Number 1D16-2829 (April 24, 2017) held that the applicable deadline to “serve” a medical provider with a pre-suit notice of intent to sue is that it must be “mailed” by the expiration of the statute of limitations.  This is in direct conflict with Bove v. Naples HMA, LLC decided by the Second DCA.

On April 21, 2022, the Florida Supreme Court resolved the conflict in Boyle v. Samotin, Case Number SC20-1399 (Fla. April 21, 2022).  As such, the statute of limitations is tolled when the notice of intent to sue is mailed rather than when it is received.

Facts Of Case And Legal Holding

Eartha Seeley sued Bay County because she was allowed to fall off a stretcher when EMS personnel were transporting her out of her home and to an ambulance that was waiting to take her to the hospital.  Her pre-suit notice of intent to sue was mailed by certified mail return receipt requested one day before the applicable statute of limitation expired.  This pre-suit notice was not received by Bay County until one day after the statute of limitations had expired.

The trial judge ruled that Ms. Seeley’s pre-suit notice of intent letter was “served” timely because section 766.106(4), Fla. Stat. and Fla. R. Civ. P. 1.650(d)(1) say that the notice of intent “shall be served by certified mail, return receipt requested, prior to the expiration of any applicable statute of limitations or statute of repose.”

The First DCA disagreed with the opinion from the Second DCA given in Bove v. Naples HMA, LLC, 196 So. 3d 411 (Fla. 2d DCA 2016) which said that “it is the date the notice is received-rather than the date that the notice is mailed-that is relevant for purposes of determining whether the statute of limitations has been tolled.”  Even though Rule 1.650 does not say the word “received” in early context of sending the notice, the Second DCA felt that “return receipt requested” was sufficient to say that “service” of the pre-suit notice requires actual receipt.

DCA Split Between First And Second DCA’s

A split between the DCA’s in Florida means that the law of each respective DCA applies to courts within its jurisdiction until the Florida Supreme Court rules on the issue.  This can exist for many years and possibly indefinitely if a challenge is not brought to the Supreme Court.  Likewise, courts in other DCA jurisdictions can follow either legal holding until their respective DCA takes a position.

A DCA split can be very costly to litigants as most litigants do not want to wait several years to resolve their cases.  With this in mind, a plaintiff located within the boundaries of the Second DCA (because of the Bove decision) will need to ensure that their pre-suit notice of intent is received by a prospective defendant and should not rely on the First DCA decision.  The same is actually true for any plaintiff anywhere else in Florida except for within the First and Fifth DCA’s because there is a risk that another DCA may side with Bove (the Fifth DCA in Baxter v. Northrup, 128 So. 3d 908, 912 (Fla. 5th DCA 2013) took the same position taken by the First DCA in Seeley).

This presents a real precarious situation for plaintiffs because a prospective defendant may have moved or may be outside the jurisdiction of the courts (i.e. on a medical mission trip to Africa) while you are trying to have them “served” with a pre-suit notice of intent letter.

Expected Outcome From The Florida Supreme Court

With two DCA’s supporting a plain interpretation of the law that “mailing” a pre-suit notice of intent before the statute of limitations has run, I would expect that the Florida Supreme Court will agree and disapprove of Bove.  However, the arena of medical malpractice is highly politicized and subject to the whims of who is on the court at the time a decision is made.  Further, many people in our state believe that medical malpractice cases are generally frivolous until they themselves have a medical malpractice claim to complain about.

Unenforced laws (or unequally enforced laws) are one of the greatest threats to freedom in our society.  Considering that Baxter was decided before Bove, the court in Bove should have held consistent with Baxley but certified a question of great public importance to the Supreme Court based on arguments that were made.  This would have avoided a DCA split and potentially disastrous results for some litigants who are unable to meet the “service” requirement of receipt before their applicable statute of limitations expires.

Help For Your Florida Medical Malpractice Case

If you have an injury or medical outcome that should not have happened, then you may have a meritorious Florida medical malpractice case.  You should have your case reviewed by a qualified medical malpractice attorney in Lakeland, FL to determine whether your case is viable.  Schedule your free appointment with an attorney today.


Back to our main blog page

June 18, 2017