Under section 95.11(4)(b) of the Florida Statutes, a plaintiff must bring his or her action for medical malpractice within 2 years from the time of the incident that gave rise to the lawsuit or within 2 years from the time the incident was discovered if due diligence were exercised. In a recent case, a plaintiff appealed a final judgment in favor of a doctor and hospital. The court had granted summary judgment in their favor on the basis of a statute of limitations defense.
The doctor performed hip replacement surgery on the plaintiff in 2004. The next day the plaintiff told the doctor that his leg was numb and he had a foot drop. The doctor and staff told him these symptoms would go away after physical therapy. The plaintiff continued treatment with the doctor, but his symptoms didn’t improve.
In 2005, the plaintiff went to see a neurologist who advised him he had a permanent neurological deficit. In 2007, the plaintiff filed a notice of intent as required by statute and then the malpractice action.
The defendants filed for summary judgment claiming the statute of limitations expired on February 1, 2007. In their view, the statute of limitations began to run in 2004, on the day the plaintiff noticed he had foot drop. The trial court granted the motion on that basis.
The plaintiff appealed. The appellate court explained that the dispositive question was when the plaintiff discovered or reasonably should have discovered medical malpractice might have caused his injury. The trial court agreed with the defense that this moment occurred when the plaintiff experienced foot drop. The appellate court explained that in order to sustain that conclusion, the nature of the injury itself had to show a layman that the injury was caused by malpractice rather than a natural occurrence.
An injury can be an obvious result of malpractice. For example, when a wrong limb is amputated, the statute of limitations immediately commences to run. However, the injury does not always speak for itself.
The appellate court reasoned that it could not conclude that the foot drop made it clear to a layperson like the plaintiff that medical malpractice was a reasonable possibility. The doctor had testified that foot drop can be a complication of replacement surgery, which he discusses with patients before performing surgery. Even his interrogatory responses admitted that a certain number of foot drop symptoms occurring after hip replacement can’t be attributed to a particular cause.
At his deposition, he still didn’t know why the plaintiff had experienced foot drop. Similarly a defense expert had explained that foot drop is an accepted risk of the type of surgery the plaintiff underwent.
The appellate court explained that a layman could not be expected to know a symptom was medical malpractice when medical professionals concluded the symptoms were the result of natural causes. The appellate court also reasoned that the plaintiff had relied on the defendants’ representations that what he was experiencing was normal for the post-surgery recovery period.
The appellate concluded that the issue of when the statute of limitations began to run was a question of fact for the jury to determine. It reversed the lower court.
If you are seriously hurt because of a medical professional’s negligence, contact the knowledgeable Florida medical malpractice attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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