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Florida’s 90 Day Tolling Period in Medical Malpractice Actions for “Potential Defendants”

January 23, 2015
Kimberly Wald

Florida’s medical mcalendaralpractice law is very complicated as there are many procedural requirements set forth in Chapter 766 of the Florida Statutes. If these rules are not strictly followed, the court may strike pleadings and, in a worst case scenario, a potential lawsuit may subsequently be barred by the applicable statute of limitations.

An early stage in any medical malpractice action is a process called “pre-suit.”  During pre-suit, one of the statutory requirements is that you put potential defendants on notice of your intention to initiate litigation.  No lawsuit can be filed for a period of 90 days, and during this 90 days, the statute of limitations is tolled.  (This tolling period can be further extended an additional 90 days by filing an extension of the statute of limitations.)  When the pre-suit 90 day period is completed, the claimant can file a medical malpractice lawsuit within either the remainder of the original statute of limitations period, or 60 days, whichever is greater.

Although this process seems relatively straightforward, there have been disputes over the precise meaning of the statute and how the tolling periods applies.  It is clear from Section 766.106(3)(a) that the statute of limitations is tolled for 90 days for potential defendants who have been served with the notice of intent; however, an issue arises as to whether this tolling period also applies to defendants who have not been served with a notice to intent to sue.

Recently, the Third District Court of Appeal issued a ruling answering this question. Salazar v. Coello, 2014 WL 7156859 (3rd DCA 2014).  The Court held that Section 766.106(3)(a) tolls the statute of limitations for all likely defendants, even if they were not served with a notice of intent to initiate litigation.  Id.  The Court undertook an extensive review of the Florida Statutes and concluded that the Florida Legislature intended that the statute of limitations is tolled as to any defendant, even those who were not originally served with a notice of intent.  Id.  The Court further reasoned that the Florida Legislature did not intend for there to be any difference between the terms “prospective defendant” and “potential defendant” that are used in the statute.  Id.

This is an important ruling because, as in the Salazar case, if the statute of limitations was not tolled during this 90 day period, the notice of intent would have been filed after the expiration of the statute of limitations, and consequently, any subsequent pleadings would likely have been stricken.  Thus, the Plaintiff ultimately would not have been able to hold a potentially negligent party accountable for medical negligence.