August 19, 2016

Florida Appellate Court Denies Medical Negligence Action Based on Statute of Limitations

One of the most common types of claims to arise in a nursing home abuse case is medical malpractice. Ensuring that the elderly receive the treatment that they need in an appropriate and timely fashion falls directly within a nursing home's duty to its residents. In Florida, there are certain time limits placed on when an injury victim can file a claim. When it comes to medical negligence, an injury victim has two years from the date the injury victim learned about or should have learned about the negligence. According to Florida Statutes Section 95.11(4)(b), however, an injury victim cannot bring a claim more than four years from the date of the incident.

Determining the date that the injury victim discovered or should have discovered the negligent act is one of the biggest issues in nursing home negligence cases. The resident may suffer from dementia or another illness, leaving it up to the family members to ensure that their loved one is receiving the care that they need. Even with the most attentive and involved families, determining exactly when the negligence occurred can be difficult.

In the recent case of Bove v. Naples HMA, LLC, the Florida Second District Court of Appeals considered this very issue. The decedent in the case died following a medical procedure to obtain a bone marrow biopsy. According to a physician who testified at trial, the patient died from a retroperitoneal bleed that interacted with other medical issues. Following the death of her husband, the decedent's wife obtained letters from medical experts who informed her that the death was associated with the biopsy procedure and resulting bleed.

On February 25, 2014, the wife mailed a notice of intent to sue the hospital where the procedure was performed. On May 12, 2014, she mailed a notice of intent to sue the doctor who performed the procedure, and on June 11, 2014, she sent a notice of intent to sue the physician who handled the biopsy.

The plaintiff sought an extension of the statute of limitations and later initiated her lawsuit after receiving denials of each notice of intent to sue. The physicians and the hospital filed a motion to dismiss, claiming that the plaintiff failed to initiate her action within the statute of limitations, and the trial court granted all three motions.

On appeal, the plaintiff alleged that she did not learn about the potential negligent cause of her husband's death until she first consulted with her lawyer in July 2012 and that the action was timely filed because she sought an extension of the statute of limitations. The appellate court agreed with the defendants that the plaintiff could not contravene the notices of intent to sue that she sent to the hospital and doctors, which included a statement that she became aware of the defendant's potential negligent conduct on the date of the decedent's death, meaning the statute of limitations expired before the defendants received notice.

If you or a loved one have suffered injuries while in the care of a convalescent hospital, nursing home, or senior care residence, you may be entitled to compensation. At Lusk, Drasites & Tolisano, our nursing home abuse and neglect attorneys are well versed in the nuances of Florida's statute of limitations laws as applied to medical malpractice cases. We can assist you with obtaining evidence, calculating the likely statute of limitations, and bringing your claim. Proudly serving clients throughout Southwest Florida, including in Naples, Cape Coral, and Fort Myers, we offer a free consultation to discuss your potential case and the legal options that may be available to you. Call us at 1-800-283-7442 or contact us online to schedule your appointment.

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Posted in: Nursing Home Abuse

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