All Florida medical malpractice lawsuits must be filed within a certain amount of time, or the judge overseeing the case will dismiss the plaintiff’s case. Pursuant to Florida Statutes section 95.11(4)(b), Florida medical malpractice cases must be filed within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Notwithstanding the above rule, all Florida medical malpractice cases must be filed within two years of the alleged act of negligence.
Understandably, the inclusion of the phrase “should have been discovered with the exercise of due diligence” can lead to confusion and is often a point of contention in Florida medical malpractice cases. In a recent Florida appellate opinion, the court was tasked with determining whether a plaintiff’s case was filed within the two-year statute of limitations.
The Facts of the Case
The plaintiff had a mammogram performed, the results of which were interpreted by the defendant, a radiologist. The results of the mammogram indicated that there was a nodule in the plaintiff’s body, and the defendant believed that she may have malignant breast cancer. However, the defendant did not tell the plaintiff or her primary care doctor.
Two years later, after another mammogram, it was discovered that the plaintiff did indeed have malignant breast cancer. It was also discovered that the cancer had metastasized and spread into her bones. The plaintiff was treated with chemotherapy, and her breast cancer went into remission; however, the metastatic cancer in her bones continued to progress.
The plaintiff filed a Florida medical malpractice lawsuit against the defendant in 2012, within two years of her discovery of her metastatic cancer. However, the defendant asked the court to dismiss her case because the case was filed after the two-year mark had passed from when the defendant interpreted the x-ray results. The lower court agreed with the defendant and dismissed the plaintiff’s case. The plaintiff appealed.
On appeal, the court held that the lower court was improper to dismiss the plaintiff’s case. The court explained that the alleged injury in the plaintiff’s case was not her breast cancer but her metastatic bone cancer. Looking at the record below, the court determined that it was uncontested that the plaintiff was not made aware of her bone cancer until 2010. Thus, the plaintiff’s lawsuit, which was filed in 2012, was within the two-year statute of limitations as marked by the time when she discovered her injury.
Have You Been a Victim of South Florida Medical Malpractice?
If you or a loved one has recently been a victim of what you believe to have been medical malpractice, you may be entitled to monetary compensation. The skilled personal injury and medical malpractice attorneys at the law firm of Frankl Kominsky have extensive experience representing clients in a wide range of Florida medical malpractice cases, and they know what it takes to succeed on their clients’ behalf. Call 855-800-8000 to schedule a free consultation with an attorney today.
See Additional Blog Posts:
Florida Court Reverses Defense Jury Verdict Based on Prejudicial and Conflicting Evidentiary Rulings, South Florida Injury Attorneys Blog, August 9, 2017.
Maintaining a Healthy Work-Life Balance, South Florida Injury Attorneys Blog, September 6, 2017.