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The Two-Year Statute of Limitations

Florida Statute 95.11(5)(c) states that a medical malpractice action must be brought within two years of the date the malpractice occurred, or within two years of when the malpractice should have been discovered with the exercise of reasonable diligence. The second part of that provision comes into play when grounds for malpractice may not be immediately apparent to the patient. One example of this would be a patient who undergoes surgery and foreign object is left behind, but the patient does not learn of the retained object until a year after surgery.

Assuming no earlier diagnosis, symptoms or other information that should have prompted the patient to suspect malpractice, the statute of limitations would begin to run when the patient learned of the object.

When things become more complex is when patients do not learn of grounds for malpractice until after two years from the malpractice. For example, a patient goes to the hospital due to abdominal pain and radiology studies find that they have an enlarged spleen. The patient's spleen is removed and they are discharged without any complications. Fast forward three years when the patient begins to experience pain and shortness of breath and they are diagnosed with advanced metastatic lung cancer. It turns out that one of the radiology studies done at the hospital three years earlier not only found an enlarged spleen, but it also found a mass on one of the patient's lungs. However, none of the providers at the hospital acted on that finding or informed the patient of it. At first blush, the patient's claim would be barred under the two-year statute of limitations. Enter the four-year statute of repose.