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What is the Discovery Rule for Medical Malpractice in Florida?

Florida, like all states, tries to encourage injured victims to bring lawsuits as soon as possible after an accident. The more time that passes, the greater the likelihood that evidence will disappear and witnesses will no longer remember the incident. To really incentives filing lawsuits in a timely manner, Florida has enacted a “statute of limitations” for medical malpractice cases.

You Have Two Years to Bring a Lawsuit

As a general rule, Florida statute 95.11 gives injured patients only 2 years from the date your medical malpractice claim arises. For example, if a doctor injured you in surgery on January 1, 2018, you have until January 1, 2020 to file a medical malpractice lawsuit.

What if You Couldn’t Discover the Malpractice in Time?

This is where the “discovery rule” comes in. Sometimes it simply is not realistic for someone to discover that a doctor made an error until several years have passed. For example, a doctor might have prescribed a medicine that ends up causing cancer. But you don’t discover the cancer until 3 years have passed and you find a tumor.

In this situation, it was not reasonable for you to discover you had a tumor growing inside you, so the discovery rule stops the statute of limitations clock. The discovery rule can apply whenever it is not reasonably possible to discover a medical mistake until symptoms manifest themselves much later.

Does the Discovery Rule Have a Limit?

Yes. Under Florida law, all medical malpractice actions are completely barred if 4 years have passed since the day you received the negligent treatment. This is called the “statute of repose.” It does not matter if you could not reasonably discover the injury until some time after 4 years. Instead, you lose the ability to sue. Some complicated exceptions exist for small children and for situations where the doctor actively concealed the error, so speak to an attorney if you think these exceptions apply to you.

Of course, a statute of repose seems entirely unfair—because it is. It can leave innocent victims without an ability to sue for their injuries. But the Florida courts have upheld it as constitutional.

Speak to a Personal Injury Attorney in Miami

If you suspect a medical provider has injured you, avoid delay. Reach out to an experienced medical malpractice attorney at Dolan Dobrinsky Rosenblum Bluestein today. We offer a free consultation, which you can schedule by calling 305-371-2692.