Florida makes it difficult for victims of medical malpractice to have their day in court. Among other requirements, there is a strict two-year of statute of limitations to file a malpractice claim. This two-year deadline starts on the day of the incident giving rise to the malpractice claim, or alternatively, “from the time the incident is discovered, or should have been discovered with the exercise of due diligence.”
Malpractice Attorney’s Advice Cannot Be Used to Establish Statute of Limitations Defense
The phrase “should have been discovered” can burden the victim with having to prove the exact point when he or she suspected medical malpractice. The Florida Supreme Court has held the statute of limitations begins to run once a plaintiff has “not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.” The exact timing of the latter can be difficult for victims to ascertain, especially when they lack expertise in medicine and Florida malpractice law.
But defendants are seldom reluctant to probe for anything that might keep a malpractice case out of court. Just recently, a Florida appeals court intervened to limit a fishing expedition by a group of Miami-area medical providers who sought to violate the attorney-client privilege of a plaintiff in an attempt to prove exactly when she suspected malpractice. The case is especially disturbing given that it involves a developmentally disabled child.
The plaintiff gave birth to a daughter. Approximately two years later, the child was diagnosed with cerebral palsy. The plaintiff eventually filed suit against a number of medical providers, alleging their negligence caused her daughter’s condition.
In an attempt to prove that the plaintiff “first comprehended a reasonable possibility that her child’s injury was caused by malpractice” after the statute of limitations expired, lawyers for the defendants demanded that the plaintiff disclose what medical malpractice lawyers she spoke to. They wanted to know exactly when she spoke to these lawyers and the purpose of her consultations with them. Beyond admitting she had spoken to at least one lawyer before retaining her current malpractice attorney, the plaintiff declined to answer any further questions on this subject.
The trial judge ordered the plaintiff to comply with the defendants’ demands. Specifically, she was directed to “answer all questions” related to her prior consultations with any attorney regarding her daughter’s condition. The plaintiff appealed this order.
On June 22, the Florida Third District Court of Appeals ruled partially in the plaintiff’s favor. Requiring the plaintiff to answer “all” questions on this subject would force her to disclose “confidential communications” with her lawyers (or potential lawyers), thereby violating the attorney-client privilege. In other words, the defense cannot ask her to divulge whether and when an attorney advised her that she might have a valid malpractice case.
Get Advice From a Florida Medical Malpractice Lawyer
You should never be afraid to consult with a Clearwater medical malpractice attorney about an act of negligence that has affected you or a family member. Everyone has the right to seek and receive confidential legal advice. Contact the Law Office of Paul B. Genet, P.A., today if you have any questions or concerns about a potential medical malpractice claim.