Notice of Intent to Sue Must be Received by Statute of Limitations in Second DCA

Medical Malpractice

The case of Bove v. Naples HMA, LLC, et al, 2D-1680 (Fla. 2d DCA 2016) decided a pivotal issue regarding the statute of limitations in Florida medical malpractice cases. The Second DCA decided that Florida law requires a notice of intent to sue a medical provider for medical malpractice must be received by the expiration of the statute of limitations rather than just sent by certified mail (with return receipt requested).

UPDATE-The Florida First DCA certified a conflict with Bove v. Naples HMA, LLC with its decision on April 24, 2017 in Bay County Board of Commissioners v. Seeley (Case No. 1D16-2829 Fla. 1st DCA 2017).  Therefore, until this conflict is resolved by a decision of the Florida Supreme Court, Bove controls in the Second DCA (Tampa, Lakeland, Sarasota areas).  Specifically, the Seeley case disagrees with the notion that receipt of the notice of intent is “service” and instead indicates that “mailing” the notice of intent is “service” within the meaning of the law.  The First DCA did not think that the date the notice of intent was received was important.

What Is The Statute Of Limitations For Medical Malpractice In Florida?

The legal analysis of when the statute of limitations runs is not obvious in a Florida medical malpractice case. The statute of limitations is generally two years from the date of the malpractice, or two years from when a claimant discovers that malpractice occurred but it no event more than four years (see section 95.11(4)(b), Florida Statutes). Florida also allows a medical malpractice claimant to purchase an additional 90 days added to the statute of limitations for a fee paid to the clerk of the court (see section 766.104(2), Florida Statutes). Further, once a notice of intent to sue has been sent and received, section 766.106(4), Florida Statutes provides for a tolling of the statute of limitations by 90 days.

However, Fla. R. Civ. P. 1.650(b)(1) states that “[n]otice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.”

What Is The Deadline To Send A Medical Malpractice Pre-Suit Notice Letter In Florida?

The rule goes on further in subsection Fla. R. Civ. P. 1.650(d)(1) to say that “[t]he notice of intent to initiate litigation shall be served by certified mail, return receipt requested, prior to the expiration of any applicable statute of limitations.

Therefore, the notice of intent to initiate a medical malpractice case must be sent and received by certified mail before the expiration of the statute of limitations (including the purchased 90 day extension). Once the notice of intent letter has been received, section 766.106, Fla. Stat. provides for tolling of the statute for 90 days plus the pre-suit period. A lawsuit must be filed be filed within 60 days from the end of the pre-suit period. I wish that there were a simpler way to explain this but there is not and there are many lawyers who are confused by the rules. Future court opinions may weight in on these issues further. For now, the best practice is to avoid the tricky math altogether by giving yourself enough time to file your case with time still left on the clock.

For Help With Your Florida Medical Malpractice Case, Contact A Polk County Medical Malpractice Attorney

If you would like information or help regarding a medical malpractice case in Polk County, Florida, please contact a medical malpractice attorney in Polk County, Florida for a free consultation and case evaluation.


June 16, 2017