Salazar v. Coello: A Look at Florida’s Medical Negligence Intent to Sue Requirements

photo_1485_20060427Although initiating a lawsuit should be essentially the same regardless of the subject matter involved, many types of cases do require that a plaintiff engage in specialized procedures or risk having his or her claims lost. Among the most important of these specialized procedures in Florida is the pre-suit notice and investigation scheme for medical negligence cases provided by Section 766.106 of the Florida Statutes. This notice and investigation process is the subject of a recent decision from Florida’s Third District Court of Appeals, Salazar v. Coello.

To provide background, Section 766.106 requires that a plaintiff with a putative medical negligence claim conduct a pre-suit investigation, after which he or she must, prior to filing a complaint, notify each of the prospective defendants of his or her intent to initiate litigation. The statute further requires that the plaintiff provide, if available, a list of the following along with the notice:  1) all health care providers the plaintiff has seen for the injuries of which he or she has complained subsequent to the purported act of medical negligence; 2) all health care providers the plaintiff has seen in the two years prior to the alleged act of negligence; 3) copies of all medical records on which the expert providing an affidavit in support for the plaintiff’s claim has relied; and 4) a standardized authorization form. Suit may not be filed for 90 days following delivery of this notice, and during this 90-day period the defendant or its insurer are supposed to conduct a review of the claim and determine possible liability. Importantly, during this 90-day investigative period the statute of limitations is tolled against all potential defendants.

The key issue in Salazar relates to the effect of the tolling provisions of Section 766.106. The plaintiff in this action was injured as a result of alleged medical negligence during a surgery performed on August 22, 2007. On August 10, 2009, only two weeks before the expiration of Florida’s two-year statute of limitations for medical negligence claims, the plaintiff filed for an automatic 90-day extension of the statute of limitations to perform pre-suit investigation as provided under Florida Statutes Section 766.104(2). This extended the expiration of the applicable statute of limitations until November 20, 2009. Thereafter, on October 21, 2009, the plaintiff sent a Notice of Intent to Initiate Litigation to the surgeon who performed the surgery and the hospital where the surgery was performed. However, these were not the only defendants to be served in this litigation. On February 12, 2010, the plaintiff sent notice to three additional defendants. Following commencement, the three defendants served on February 12 moved for summary judgment, arguing that since the plaintiff had not provided them with notice until after the expiration of the statute of limitations on November 20, 2009, the action should be dismissed as untimely. The trial court concurred and granted the motion for summary judgment.

However, in a unanimous opinion, the Third District Court of Appeal reversed the trial court’s grant of summary judgment and clarified the effect of the tolling provisions under Section 766.106. Pursuant to Section 766.106, receipt of a Notice of Intent to Litigate by any defendant tolls the statute of limitations for 90 days against “all potential defendants.” Accordingly, following the receipt of the Notice of Intent to Litigate provided to the first two defendants on October 22, 2009, the statute of limitations was tolled for 90 days from that date against all potential defendants, including the three who were not provided notice until February. Following these 90 days, the statute of limitations would then resume to run with whatever time remained before it had been tolled, including the time provided by the automatic extension. Thus, at the time the three additional defendants received notice in February, the statute of limitations had not yet elapsed.

Although the defendants argued that the tolling provision only applied to those defendants who had been served with a Notice of Intent, the Third District Court of Appeal found this reading inconsistent with those statutory terms. Moreover, the Third District noted that all prior cases interpreting the tolling provisions of Section 766.106 have concluded that the tolling applies to all defendants and that multiple tolling periods could exist. Specifically, the court relied on the Fifth District Court of Appeal’s decisions in Burbank v. Kero, 813 So. 2d 292 (Fla. 5th DCA 2002) and CORA Health Services v. Steinbronn, 867 So. 2d 587 (Fla. 5th DCA 2004), which both held that receipt of a Notice of Intent to Litigate tolled the statute of limitations against all possible defendants, including those who had not been already been provided notice. Thus, the Third District brought its position on the issue into conformity with the Fifth District and reversed the grant of summary judgment.

Initiating litigation can be far more complicated than simply filing a complaint in court. Indeed, pursuing a claim for medical negligence requires a plaintiff to not only conduct a pre-suit investigation of the claims but also send detailed notice to potential defendants, all while balancing a potential maze of statutes of limitations and tolling provisions. Considering this and other similar schemes, those who have been injured in a possible case of medical negligence should always consider acquiring representation of experienced counsel long before they file suit. Frankl & Kominsky’s South Florida medical malpractice attorneys have many years of experience litigating claims in state and federal courts and are prepared to offer the competent legal advice you may need. Please feel free to contact us if you are interested in a free case evaluation.

Related Blog Posts:

Second District Court of Appeal Reverses in Medical Negligence Suit

Supreme Court of Florida Resolves Conflict in Broward Medical Malpractice Case

Supreme Court of Florida Invokes Constitutional Provision in Decision on Proper Scope of Discovery in Medical Malpractice Suit