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Florida Court Clarifies Notice Rules for Medical Malpractice Lawsuits

A Florida Appeals Court ruled earlier last month that a tolling provision in the state laws regarding medical malpractice lawsuits applies to all potential defendants once any notices of intent are timely served, and it even applies to prospective defendants who have not yet been served. A three judge panel from the Third District court found that this was a factual case of first impression and that the purpose of the state law was to provide access to the courts.

Facts of the Case

In the case of Salazar v. Coello et al., Aracely Salazar had surgery in August 2007 and suffered from a brachial plexus injury as a result of the anesthesia. In August 2009, less than two weeks before the statute of limitations ran out on her medical malpractice claims, Ms. Salazar received a ninety day extension on the statute of limitations, as provided for by Florida law.

In October of that year, Ms. Salazar sent a Notice of Intent to Initiate Litigation to the surgeon who performed the surgery as well as the hospital. However, she did not send notices to the aesthetician or his employer of the pending litigation until three days before the statutory ninety day stay of litigation had tolled. These defendants claimed that the statute of limitations had run out for Ms. Salazar’s claims against them, and they brought a summary judgment motion to dismiss her claims. The trial court agreed with them, and Ms. Salazar appealed.

Ruling of the Court

The Third District judges reversed the ruling of the trial court based on their interpretation of Florida statutes. At issue were laws regarding prospective defendants and pre-suit notice. The law states that claimants must notify each prospective defendant, and after the pre-suit notice is mailed to any defendant the claimant must wait ninety days before filing suit.

Another statute states that the notices must be filed within the proper time limits, but in the ninety days interim the statute of limitations is tolled for all potential defendants. In this case, Ms. Salazar served the remaining defendants three days before the end of the tolling period, which the appellate court found to be timely service.

The judges on the panel reasoned that a broad interpretation of the state’s language in the statutes was necessary in order to follow the intent of the lawmakers, protect against frivolous claims, and to provide access to the courts. In support of their reasoning, the judges stated that “the provisions of the statute are not intended to deny access to the courts on the basis of technicalities. Instead, the pre-suit notice and screening statute should be construed in a manner that favors access to courts.”

Call a Florida Medical Malpractice Lawyer

If you or someone that you know has questions regarding how this ruling could affect their case or have other questions regarding a medical malpractice claim in Orlando, Tampa, Fort Myers, Jacksonville, or West Palm Beach, let the experienced lawyers at The Pendas Law Firm help. Call or contact the office today for a free and confidential consultation of your case.

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