Gina Marie Bove, as Personal Representative v. Naples HMA, LLC, Case No. 2D15-1680 (2nd DCA)

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In Bove, the Second District ruled that the plaintiff’s medical malpractice complaint was untimely filed under the applicable statute of limitations period. The case arose after the plaintiff’s husband died on February 26, 2012 following a retroperitoneal bleed after a bone marrow transplant. The plaintiff met with her counsel on July 12, 2012. Just one day prior to two years from her husband’s death, on February 25, 2014, the plaintiff mailed her first notice of intent to pursue litigation to a potential defendant in the case. That defendant, however, did not receive the notice until March 4, 2014. Subsequent notices of intent to pursue litigation were mailed in May and June, 2014. The plaintiff filed a motion to extend the statute of limitations on April 30, 2014. The lawsuit was filed in September 2014. The defendants each moved to dismiss the lawsuit on statute of limitations grounds, and the trial court agreed with the defense’s position.

On appeal, as in front of the trial court, the plaintiff contended that she did not learn of possible medical negligence until July 10, 2012, when she first met with her attorney. Fla. Stat. 95.11(4)(b) provides that an action for medical malpractice shall commence within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action commence later than four years from the date of the incident, with a certain exception not applicable in this case. “Mere knowledge of an injury is not enough to trigger the running of the statute of limitations; rather, a plaintiff must also have knowledge that there is a reasonable possibility that the injury was caused by medical negligence.”

Here, the Second District noted that while it can foresee circumstances in which the type of experience the decedent experienced might not be the obvious result of medical negligence, the plaintiff’s notice of intent to pursue litigation stated that on the date of the decedent’s death, “the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy.” Generally, “parties are bound by the allegations in their pleadings, and within the context of judicial proceedings, litigants are not permitted to take inconsistent positions.” Therefore, despite the plaintiff having filed a subsequent affidavit in response to the motions to dismiss stating that she had not become aware of any possible medical malpractice until she met with her attorney, the Second District ruled that she was bound by the assertion contained within her notice of intent, that she became aware of possible negligence on the date of her husband’s death.

The Second District additionally rejected the plaintiff’s position that the statute of limitations period was tolled once she mailed her first notice of intent on February 25, 2016. The Second District cited to Fla. R. Civ. P. 1.650(b)(1) and (d)(1) which the court construed as requiring receipt by the recipient prior to the statute of limitations period running, which did not occur in this case. Thus, the Second District ruled that “it is the date that the notice is received – rather than the date that the notice is mailed – that is relevant for purposes of determining whether the statute of limitations has been tolled.”

The Second District added that “in a case where there is no admission by a plaintiff as to when they became aware of possible negligence, the question of when the limitations period begins to run is inherently less susceptible of a pretrial disposition. In this case, however, the plaintiff was bound by the allegations in her notice of intent, and therefore, there was no question left for the jury as to when the plaintiff knew or should have known of possible medical negligence.