Stephen Cain, left, and Michael Levine, right.

As Florida's First District Court of Appeal recently observed, "medical malpractice plaintiffs do not have the same common law rights as victims of other types of negligence." Medical malpractice cases are different than any other in Florida. Aside from being both difficult and expensive, they also provide unique procedural challenges that, if you're not careful, could prove devastating to your client's case.

Unlike other tort cases, plaintiffs must comply with a pre-suit process before they can open the courthouse doors. Prior to filing a lawsuit, plaintiffs must provide prospective defendants with written notice of their claim, triggering a 90-day period during which the defendants are to perform an investigation. The intent behind this rule was to root out frivolous suits and promote the settlement of meritorious claims.

The pre-suit notice must be sent certified mail, return receipt requested. Florida law provides that the statute of limitations is tolled during the pre-suit period. Significantly however, Florida courts remain divided as to whether the mailing of the pre-suit notice tolls the statute, or the actual receipt of  the notice, triggers the tolling period.

Last week, in Boyle v. Samotin, Florida's Second District affirmed summary judgment in favor of a physician finding that the plaintiff's claim was barred by the statute of repose. Although the plaintiff had mailed the required notice prior to the expiration of the statute of repose, the defendant physician did not sign the return receipt for  that notice until after the limitations period. The Second District, following its prior precedent, ruled that the limitations period could not be tolled until the defendant received the notice. As a result, the plaintiff was three days late instead of one day early. The Second District certified conflict with the Fourth District and Fifth District, both of which have rejected the "receipt" argument and ruled that the tolling period commences when the pre-suit notice is mailed.

The dispute between the mailing and receipt arguments centers around the language of Florida's Medical Malpractice Act and Florida Rule of Civil Procedure 1.650, which was adopted by the Florida Supreme Court in order to implement the legislative intent of the act. The statute provides that a plaintiff's pre-suit notice shall be "served" within the time limits prescribed by section 95.11, which sets forth the limitations period. The statute further states that "no suit may be filed for a period of 90 days after notice is mailed to any prospective defendant." Meanwhile, Rule 1.650 references both mailing and receipt of the pre-suit notice and uses the receipt date to calculate other time limitations.

In ruling against the plaintiff, the Second District acknowledged that it was bound by its 2016 ruling in Bove v. Naples HMA, which presented identical facts. Meanwhile, Judge Andrea Teves Smith wrote a concurrence explaining she only agreed with the majority as a result of the court's prior opinion in Bove, but went on to explain in great detail why the court was wrong and why the Fourth District and Fifth District had correctly interpreted the notice requirement.

Smith focused on a textual argument that Florida's Supreme Court may find persuasive.   According to the concurrence, the Court's prior opinion in Bove emphasized the text of Rule 1.650, whereas the focus should have been on the plain language of the statute. The statute of course, refers to mailing the notice as triggering the pre-suit period during which suit cannot be filed.

Aside from her textual analysis, Smith also highlighted the inequity of  relying upon the date of receipt because unreliable mail delivery could act to reduce a plaintiff's  statute of limitation  leaving the plaintiff "at the mercy of the mail service and to the defendant's willingness to accept and sign for the certified package." Finally, Smith also acknowledged that Florida's Medical Malpractice Act places restrictions on plaintiffs' access to the courts.

To further shorten the already-lessened statute of limitations is not only unfair to victims of malpractice, but also does not further the legislative intent behind the act. As the Fourth District explained in its conflicting opinion, the notice requirement should not "function as a trap for medical malpractice claimants." Likewise, plaintiffs in Naples should have just as much time to pursue a claim as plaintiffs in Fort Lauderdale or Orlando. Nevertheless, lawyers across the state will have to keep an eye on Boyle to determine how it will affect the timeliness of malpractice claims.

Stephen Cain and Michael Levine are partners at Stewart Tilghman Fox Bianchi & Cain in Miami where they represent plaintiffs in catastrophic injury and wrongful death cases.