Statute of Limitations — Protected Information in Florida Medical Malpractice
Recently, the Second District Court of Appeals decided the case of Gina Marie Bove, as Personal Representative of the Estate of Anthony Bove, deceased v Naples HMA, LLC d/b/a Physicians Regional Medical Center-Pine Ridge; William Akin, MD; and Jay Wang, MD. (41 Fla. L. Weekly D827f).
An appeal was taken from a dismissal of Bove’s medical negligence complaint alleging the defendants were negligent in the treatment of her husband and caused or contributed to his death.
Through experience, I know that in Florida, before filing a medical malpractice lawsuit, the plaintiff must first give “notice of intent to sue” to the defendants and go through a 90-day investigatory period. If the defendants deny the plaintiff’s claims a lawsuit may then be filed. The notices and the complaint must be filed before the expiration of the medical malpractice statute of limitations set forth in Florida Statutes. Granted an over simplified explanation of the law, but you get the point.
The central issue in Bove for the trial court and the Court of Appeals was deciding whether Bove’s Notices of Intent were served after the expiration of the medical malpractice statute of limitations and whether Bove’s claims for the death of her husband from medical negligence were barred by the statute of limitations.
The fundamental dates and events are:
- 2/26/2012: date of Anthony Bove’s death.
- 4/19/2012: date Ms. Bove met with Dr. Akins to review her husband’s treatment.
- 7/10/2012: date Bove met with her attorney for the first time.
- 2/25/2014: date Bove mailed her notice of intent.
- 3/4/2014: notices of intent received by the defendant physicians.
- 3/17/2014: Bove provides defendant physicians with affidavits executed by two experts to support her notice of intent.
- 4/30/2014: Bove filed a Petition to Automatically Extend the Statute of Limitations.
- 9/8/2014: Bove files complaint after receiving denials from defendant physicians.
In Bove’s notice of intent, she set forth:
“the two (2) year timeframe [in which to file the complaint] would begin to run from the date of Mr. Bove’s death, as this was the date the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy.”
After the investigatory period, the lawsuit was filed and the defendants all filed Motions to Dismiss Bove’s complaint. They argued the statute of limitations, under 95.11(4)(b), Florida Statutes (2011), had expired before Bove’s lawsuit was filed. The trial court dismissed the complaint and the appeal to the Second District Court of Appeal by Bove followed.
The basis for dismissal centered on Bove’s “admission” in her notice of intent that the date of discovery of the defendant’s negligence was the date of her husband’s death, 2/26/2014 and the statute of limitations would have expired on 2/26/2014. If that were the case, the notices of intent were not received by the defendants until after the statute’s expiration.
The “admission” upon which the trial court relied and the Court of Appeals affirmed was contained on the notice of intent. This is a document generated under 766.106, Florida Statutes (2011); specifically, 766.106(2)(a). Florida Statutes.
Under 766.106(5), Florida Statutes, the legislature determined that nothing generated in the investigatory period can be used for any other purpose:
“(5) DISCOVERY AND ADMISSIBILITY. —A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).” (emphasis added).
The Second District Court of Appeals, 41 FLA. L. Weekly D827f, concluded its decision affirming the trial court’s dismissal:
“We hold Mrs. Bove was bound by her admission in her notice of intent that she became aware of the appellees’ possible medical malpractice on February 26, 2012, and, that as a result, the trial court properly determined the issue of the timeliness of her complaint. We also hold that because her notice of intent was not received by any of the appellees prior to the expiration of the statute of limitations on February 26, 2014, the limitations period was not tolled and her complaint was untimely filed. We therefore affirm.”
There are several issues, which make the decision of the court interesting.
First, Ms. Bove did not author the notice of intent, her lawyer did, so the notice of intent is neither sworn testimony of Ms. Bove nor testimony at all from Ms. Bove.
Second, it is unlikely, although possible, that Ms. Bove had sufficient facts or experience to appreciate that negligence had occurred and that it resulted in her husband’s death before meeting with Dr. Akins on April 19, 2012. There is no reason to disbelieve Ms. Bove’s testimony she was not aware of negligence until she met with her lawyer in July of 2012, since the sole admissible evidence of the statute of limitations was actually Ms. Bove’s affidavit in which the court sets forth she swore she did not realize she had a cause of action until she met with her lawyer in July of 2012.
The court’s reliance on the notice of intent seems to have gone without objection, but is contrary to the plain statement and intent in 766, Florida Statutes and is contrary to cases such as Michael J. Cohen, M.D., et al., v. Michael Dauphinee, No. 91,239. (1999). In Cohen the Florida Supreme Court would not permit the use of a sworn affidavit generated during the investigatory period to impeach a physician-expert during his testimony.
Whether or not the statute of limitations expired in Bove is worthy of a jury’s determination or possibly a Motion for Summary Judgment. Hopefully the Florida Supreme Court can find its way clear to correcting the ultimate disposition.