Articles Posted in Statute of Limitations

Although the law is fundamentally concerned with justice, justice often requires that a party take timely action to redress her harm. Indeed, negligence cases are subject to various statutes of limitations, and many would-be litigants have gone to court only to find that their claims, irrespective of their merits, have been lost because of the passage of time. Although many statute of limitations cases relate only to a plaintiff’s failure to take timely action, a recent decision from the First District Court of Appeals, Russ v. Williams, involved an intriguing situation when a defendant’s “mischief” helped assure that a plaintiff’s claims would be time-barred.

Although the merits of the claims were ultimately not reached in Russ, the case arose from a motor vehicle crash on May 15, 2009. The plaintiff alleged that the defendant’s negligence led to the accident and filed the complaint in this case in November 2012. The complaint was served on the defendant on March 1, 2013. On May 23, 2013, one week after the statute of limitations had elapsed, the defendant moved for summary judgment, arguing that his wife was actually the one operating the vehicle at the time of the crash and was the sole owner of the vehicle. The plaintiff moved to amend the complaint in order to add the defendant’s wife as the proper party. The defendant opposed the motion, arguing that the defendant’s wife was an entirely new party and that any claims against his wife were time-barred because the statute of limitations period had passed. The trial court granted the plaintiff’s motion to amend the complaint but reserved judgment on any statute of limitations issues. The claims against the original defendant were dismissed.

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Although most people have a basic understanding of the effect a statute of limitations has on a person’s ability to bring suit, the application of a statute of limitations can often be more complicated than expected. For instance, the Fourth District Court of Appeal recently ruled in an interesting case that involved when the statute of limitations begins to run when the injured party is incapacitated and, as a result, needs to have a guardian appointed.

The decision, Barrier v. JFK Medical Center Limited P’ship, arose from an alleged case of medical negligence that occurred in 2010. The plaintiff in this action is the mother, and legally appointed guardian, of the injured person. Her adult son had been transported to a hospital from a substance abuse facility after he attempted to commit suicide. Fewer than 10 hours after his discharge, the same substance abuse facility contacted the hospital to report that the patient was in a lethargic state and unresponsive. He was returned to the hospital, where drugs were discovered in his possession. Within two hours of his arrival, he was discharged again and into the custody of the police. While in police detention, he suffered from a cardiac arrest resulting from a drug overdose and went into a coma from which he has not emerged.

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Although 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.

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