"Florida Medical Malpractice and the Statute of Limitations"
Florida Medical Malpractice and the Statute of Limitations: Overview of Select Statutory Provisions and Case Law Governing Medical Malpractice Litigation Mark R. Osherow, Esq.* A full understanding of statute of limitations issues is essential to both case selection and analysis and the formal prosecution of each meritorious medical negligence claim. As a practical matter, the practitioner is well advised to select the earliest possible date for computation of the two year statute of limitations which will control in most cases, i.e., the date the error or omission occurred. Unfortunately, meritorious cases, for many reasons, at least on occasion, will not be presented to counsel until after two years from the date of the actions giving rise to the case, or under circumstances where, viewing the case in the most cautious light, the statute runs the risk of running shortly. This article will consider the benefits and risks of immediate action to preserve claims, while counsel suspicious that the case has merit, requires additional time for consideration and investigation. A clear understanding of these issues can enable counsel to take on difficult cases (occasionally meritorious ones with a large upside that numerous other attorneys have rejected), without substantial risk (other than that generally in contingent cases) and to reject those where the risk is clearly outweighed by the reward, or where the chance of obtaining the required corroborating medical affidavit, is unlikely to be accomplished within the limitations period. Occasionally, some of the most difficult scenarios are posed to counsel where retention is accepted (sometimes after the case has been rejected elsewhere) in what later proves a marginal case, or one where no reasonable view of the facts after further analysis can lead to a conclusion that the standard of care has been breached, or if it has, that the prospective plaintiff’s injuries or damages are a proximate result of that breach. In these circumstances, the case should be formally rejected, in writing, at the earliest opportunity. The client should be personally explained the analysis that has lead to your conclusion. These meetings, while time consuming, can often save counsel from considerable annoyance later. Where the limitations period is approaching rapidly, a face-to-face discussion with the client is highly advisable both to preserve the relationship with the client and to discuss the client’s options. If the upside potential is enormous and the risk worth your time, you must be fully prepared to proceed immediately, and have a prospective expert lined up to review the case. Do not consider these difficult liability or damages cases unless your calender is free and you are prepared to devote the time necessary on an immediate basis. Even then, unless there are clear overriding reasons to proceed, cases like this must be viewed with extreme caution. Consideration should be given as well to a formal agreement outlining what counsel is willing to do and the client’s risks. On occasion, counsel may find that a very promising matter has crossed his or her desk -- but usually you will just be the last, of many, counsel who have rejected the case. Avoid this precarious position. If there is not a clear understanding, certainly the file should not even remain in counsel’s office following the initial consultation and a formal rejection should be out that same day. As discussed below, a full understanding of the limitations period, combined with the other considerations in a medical malpractice case will enable counsel to go forth unafraid of the risks inherent in these cases, and to act accordingly to protect the client’s interests in a timely manner. Indeed, understanding the issues discussed in this article, combined with the practitioner’s independent research and consideration, will provide most counsel with the tools to make a fully educated determination and not to simply reject a case out of fear (as prior counsel may have done). While beyond the scope of this article finding an esteemed medical provider to prepare the necessary corroborating medical affidavit or the opinion necessary to properly reject the case for lack of merit as to liability or damages, or both, may, as well be close at hand. A. The Medical Negligence Statute of Limitations The strict procedural requirements in the Florida Comprehensive Medical Malpractice Reform Act ("the Act") reflects a legislative determination to curtail frivolous claims, promote settlement, and reduce the high cost of medical malpractice insurance.i To this end, the 2-year statute of limitations serves as a potential bar to causes of action by claimants of medical malpractice.ii Whether the rising premiums are a result of zealous trial lawyers (which this author would dispute) or insurance companies seeking to maximize profits, the Florida Legislature has codified its findings consistent with a concern over rising premiums.iii A more recent example of this is evident in the area of obstetrics and, consistent with the idea of "reform", the Florida Legislature has enacted legislation, which states a concern over insurance costs and the need to set up a no-fault system to curb the rising costs and legal liability faced in this area.iv Although just one example, this section may indicate a possibly unfortunate movement towards mandatory administrative determinations of potential claims and may extend into other areas of medicine in the future.v Counsel faced with a potential medical malpractice claim would do well to become familiar with the complex and detailed Act, often conflicting appellate court decisions and how the statute of limitations can make or break a client's case. Under Florida law, ordinary negligence causes of action are subject to a 4-year statute of limitations.vi However, following an increasing trend among other states, Florida has codified a 2- year statute of limitations for medical malpractice causes of action, with a 4-year statute of repose for a medical malpractice right of action and a 7-year maximum cap for cases that involve fraud, concealment or intentional misrepresentation by a prospective defendant health care provider. vii The only exception to this is where the claimant was a minor age 8 or younger, in which case the 7- year period does not bar an action brought on behalf of a minor on or before the child's eighth birthday.viii B. Is it medical malpractice? Pivotal as to whether the Act applies, is whether the case is even one of medical malpractice, thus warranting the stricter procedural rules.ix This requires a determination of 3 whether the cause of action arose from the rendering of, or failure to render medical care or services by a health care provider.x If the prospective defendant is a health care provider bringing the action under the statute, than certain pre-suit requirements are triggered such as a pre-suit investigation and pre-suit notice. The statutory classification under Florida Statutes §766.101(2)(b) lists "health care providers" to include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, or hospitals or ambulatory surgical centers. Although the Act does not define "prospective defendants" to whom pre-suit notice must be given, that term refers to defendants in medical malpractice actions who are health care providers or who, although not expressly included within that class, are vicariously liable for acts of health care providers. xi C. Pre-Suit Requirements: Investigation and Notice The first step for counsel facing a potential medical malpractice claim is to conduct a pre- suit investigation.xii The purpose of the pre-suit investigation is to determine which defendants are truly liable for negligence as health care providers.xiii During this phase, petition should be made to the relevant court and for statute of limitations purposes, an automatic 90-day extension will be granted during this pre-suit investigation.xiv The petition for the 90-day extension need not specifically name a prospective defendant.xv Counsel otherwise may be encouraged to name every potential defendant whether remotely meritorious or not, and then drop those clearly not indicated or keep them in hopes that some liability will be found in an effort to reach effective advocacy for their clients needs. The 90-day period was also intended to encourage settlement prior to initiating litigation if possible.xvi Once the pre-suit investigation is underway, counsel for the plaintiff must give each prospective defendant notice of intent to initiate litigation before filing suit in court. xvii Once the notice of intent is mailed to a potential defendant, no lawsuit may be filed during this 90-day period.xviii During this pre-suit investigation period, the defendant's insurer also must investigate 4 and determine any liability of its insured.xix Parties must conduct informal discovery as well and cooperate fully and in good faith with their insurer.xx If either party fails to follow these pre-suit notice, investigation and discovery procedures, the court may dismiss any claims or defenses.xxi D. Good Faith and Medical Experts No action for medical negligence can be filed, until the attorney filing suit has made a reasonable investigation to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of their client.xxii The complaint or initial pleading must contain a certificate of counsel in support of such reasonable investigation leading to a good faith belief.xxiii Good faith may be shown if the claimant or his or her counsel has received a written opinion (not admissible in a subsequent litigation) that there appears to be evidence of medical negligence.xxiv The consequences of not showing good faith or any justiciable issue against a health care provider, may subject counsel to attorney's fees, costs and disciplinary repercussions.xxv A medical malpractice claimant must also corroborate the grounds to initiate litigation by providing a verified written medical expert opinion at the same time notice to initiate suit is sent.xxvi The purpose of the statutory requirement that pre-suit notice must be accompanied by an expert's affidavit to corroborate the claim is to prevent the filing of medical malpractice claims that are not legitimate.xxvii Put another way, the purpose of the notice requirement is to put a potential defendant on notice of an alleged act or acts of medical negligence, and that an expert medical opinion exists to support such a claim.xxviii A medical expert is defined as a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he or she is called to testify or provide an opinion.xxix 5 E. Response and Cooperation Before a potential defendant can reject a claim for medical negligence, the defendant, it's insurer or self-insurer must also conduct an investigation.xxx The defendant who believes there are no reasonable grounds for a claim of medical malpractice must also submit a written verified medical opinion, corroborating such a position and mailed with the notice of rejection.xxxi A necessary step during pre-suit investigation is the review of medical records, which often times are the main stay in determining potential liability at this early stage. A copy of all relevant medical records must be provided to either party requesting such documents or their respective attorney at a reasonable charge within 10 business days.xxxii Regardless, it is no excuse to refuse sending such requested copies of medical records that they are incomplete or because bills are still owing.xxxiii The consequences for failure to provide the requested copies or charge a reasonable fee is considered evidence of bad faith non- cooperation with the pre-suit requirements and serves as a waiver for the other party to provide written medical corroboration.xxxiv Hospitals also may be granted immunity from civil damages regarding the production of medical records.xxxv Where a plaintiff brings an action for medical malpractice against both a hospital and physician, the hospital's failure to provide copies of requested medical records does not waive the plaintiff's requirement of providing written medical corroboration to the defendant physician when it can be shown that the plaintiff never requested any medical records from the physician or did not allege that failure to obtain the hospital records made such corroboration impossible.xxxvi As becomes immediately apparent from the above cases, failure to follow the Act’s procedural requirements can have numerous obstacles to successful resolution of meritorious cases in an effort to maintain the scheme of weeding out frivolous claims or defenses. For example, a not uncommon strategy for a plaintiff’s lawyer following a defendant's failure to respond to a pre- 6 suit notice may be to move the court to strike defensive pleadings later asserted. Although the appropriateness of granting such a motion is fact dependant on a case-by-case basis, striking pleadings is a severe sanction where there are viable and less severe alternatives and the defendant can show that the defenses claimed are non-frivolous. A Florida appellate court came to this finding in De La Torre v. Orta,785 So.2d 553 (Fla. 3d DCA 2001), where a wife and husband sued a treating doctor for medical malpractice following their son's premature birth in 1996. Plaintiff's counsel had sent requests for medical records prior to suit and later filed notice of intent in March and April 1999, both of which the doctor had failed to respond to. The doctor believing that the statute of limitations had run and after consulting with a fellow doctor, who actually delivered the child, concluded that the claim was meritless as well. The plaintiff moved to determine the reasonableness of the doctor's pre-suit investigation and strike his pleadings. The trial court granted that motion after finding that the doctor had impeded the plaintiffs' investigation by failing to respond. The De La Torre, court citing Kukral v. Mekras, 679 So.2d 278 (Fla. 1996), was compelled to reverse. Noting that the statute authorized the trial court to dismiss claims or defenses for failure to comply with pre-suit requirements, the court justified reversal after weighing the policy of enforcing the medical malpractice screening statute against three considerations: (1) a high public policy of allowing access to courts, (2) the availability of viable and less severe alternatives such as the imposition of fines for the doctor's non-compliance and (3) a requirement that the plaintiffs' show that they were actually prejudiced by the doctor's non-compliance (a remedy which can include a compensatory award against the defendant doctor). While not completely ruling out the striking of pleadings for failure of a party to comply with pre-suit investigation and response requirements, the court reiterated the fact that such a sanction was severe especially where no prejudice was shown. 7 Besides the obvious recommendation that a prospective medical malpractice defendant comply with the pre-suit requirements and consult legal counsel versus peers on such matters, De La Torre also highlights a defendant's responsive arsenal to include shifting the burden on the claimant to show actual prejudice by any technical failures alleged against the defendant during the pre-suit investigation, notice and discovery phases. This counter attack can be further bolstered when faced with a motion to strike or other more prohibitive motions, by arguing the public policy in favor of allowing access to the courts and the availability of less drastic alternatives if the court finds actual non-compliance on the defendant's part. F. Negotiations and Tolling The Act also was designed to promote the amicable resolution of meritorious claims in the most efficient and cost-effective method for both parties involved. Given the high costs of taking a medical malpractice action to trial, whether as plaintiff or defendant, the legislature has created this system to make settlement where feasible, an attractive alternative. Numerous devices exist towards this end; for example, either party may, upon motion to the court, request non-binding arbitration.xxxvii Another alternative once the pre-suit investigation has been completed, is for both parties to agree voluntarily to binding arbitration.xxxviii This course of action has the effect of limiting arbitration of meritorious medical malpractice claims, to a determination of damages, and generally limits any other legal action once both parties agree to be bound by the arbitration panel's decision.xxxix In either event, if the case does go to trial, both parties must engage in a mandatory settlement conference before the court at least 3 weeks prior to the date set for trial.xl For statute of limitations purposes, despite the fact that negotiating parties may attempt to enter into stipulations for extending the limitations period (authorized by §766.106, Florida Statutes and Florida Rule of Civil Procedure 1.650) once a claimant receives a rejection of claim letter from the defendant, that claimant is required to file suit within 60 days of receipt of that rejection. xli 8 Taking as an example the facts from Mason v. Bisogno, 633 So.2d 464 (Fla. 5th DCA 1994), the statute of limitations began to run on November 20, 1988 upon the plaintiff's expressed lack of confidence in her treating doctor following a colonoscopy with resulting peritonitis. The notice of intent letter was sent to the defendant on November 13, 1990 (7 days before the expiration of the limitations period). This began the 90-day pre-suit investigation phase by law and was set to expire on February 11, 1991 but was extended by mutual agreement to March 31, 1991. On April 25, 1991, the rejection of claim letter with affidavit was received by the plaintiff from the defendant doctor and suit was filed on June 27, 1991. The trial court found for the defendant and the appellate court affirmed, rejecting plaintiff's arguments and finding that the suit had to have been filed within 60 days of receiving the rejection letter since there were only 7 days left before the statute of limitations ran out, or in other words by June 24, 1991.xlii Consistent with the Florida Supreme Court decision in Boyd, 627 So.2d at 481, the Fifth District in Mason reaffirmed that the correct method for computing the 90-day period tolled upon filing the notice of intent to initiate litigation, starts by counting when the notice is actually received. Both cases involved an alleged conflict between Florida Statutes §766.106(3) and Florida Rule of Civil Procedure 1.650 (the medical malpractice pre-suit screening rule). While the Court in Boyd found a conflict to be whether the 90-day period starts from the date notice was mailed or received, the Rule was immediately amended to comport with the statutory language that the period begins upon receipt.xliii Expounding further on this point, the 5th DCA in Mason refused to find any conflict with Florida Statutes §766.106(3) and Florida Rule of Civil Procedure 1.650 as amended, finding instead that the plain and ordinary meaning of the statute and the rule was clear and must be read together. Once negotiations have proven to be unsuccessful, parties should be allowed to file suit as soon as possible following the 90-day tolling period and once the claim has been rejected, there is 9 no reason to toll the limitations period any longer. The court stated that Rule 1.650 is clear on when the limitations period begins to run again, following two possible scenarios. Suit must be filed within 60-days or within the remainder of the statute of limitations after the notice of intent to initiate litigation is mailed, which ever is longer, upon the earliest of two events: (1) a written rejection of claim or (2) the expiration of the 90-day pre-suit period. The Mason court limited this holding to cases in which an extension pursuant to §766.106(4) was stipulated to, and held that "rejecting the claim" and "terminating negotiations" are the same for the purpose of restarting the statute of limitations. G. Statute of Limitations/Repose Affected by Tolling Provisions For purposes of the 4-year statute of repose, a medical malpractice action is commenced when the plaintiff files for the automatic 90-day extension of the statute of limitations in order to conduct a reasonable investigation or when a notice of intent to initiate litigation is served. xliv In contrast to the statute of limitations, the statute of repose precludes a "right of action" versus "cause of action" after a specified time, which is measured from the incident of malpractice, rather than establishing a time period within which an action must be brought measured from a point in time when that cause of action accrued.xlv The filing of the notice of intent to litigate a medical malpractice claim tolls the 4-year statute of repose in addition to the 2-year statute of limitations.xlvi Once a claimant has sent the notice of intent to initiate a medical malpractice action and the 90-day pre-suit investigation is completed, that plaintiff has 60 days or the remainder of the statute of limitations period, whichever is greater, in which to bring the medical malpractice suit. xlvii Note that the 2-year statute of limitations for medical malpractice actions are suspended for 90 days after mailing of the notice of intent to initiate litigation, regardless of when the notice of intent was sent.xlviii The automatic 90-day extension provided upon a petition to the clerk is an extension of time to be added to the limitations period, rather than a tolling period, and thus, the extension time 10 period is to be tacked on to the end of the limitations period and does not run simultaneously with the separate 90-day tolling period upon mailing of notice of intent to initiate litigation.xlix This automatic 90-day extension to the limitations period for medical malpractice actions upon application to the clerk of court is also available regardless of whether a "reasonable investigation" of the claim had already occurred.l Under the above reasoning the Florida Supreme Court in Hankey v. Yarian, 755 So.2d 93 (Fla. 2000), held that the claimant’s lawsuit was timely filed. The court in Hankey covered many aspects of the Medical Malpractice Act and statute of limitations issues. It agreed with the Fifth District in noting that if the limitations period was suspended under the tolling provisions of §766.106(4), then the Hankeys' complaint was timely filed. In that case, the limitations period began to run on December 6, 1994, and was scheduled to end on December 6, 1996. The notice of intent was filed on March 19, 1996 and suspended the limitations period for ninety days as of the date it was received by the defendants. Prior to a response by the defendants, the parties agreed to a thirty-day extension, which continued to suspend the limitations period for another thirty days or until the defendants responded to the notice of intent. By July 18, 1996, all the potential defendants had responded to the notice of intent, running the limitations period again. As of March 19, 1996, the date the notice of intent was served more than sixty days remained until the expiration date of the original limitations period (December 6, 1996). The Hankeys therefore were not entitled to any of the sixty days provided under §766.106(4) and when the limitations period began running again on July 18, it was set to expire on April 6, 1997. li However, the Hankeys' had until July 5, 1997 in which to file suit because they had filed a petition with the clerk of the court for an automatic ninety-day extension on November 20, 1996.lii The suit in this case was timely filed on June 19, 1997. Careful attention should be placed on the various extension provisions and how they may effect tolling of the statute of limitations.liii For example, the court in Coffaro v. Hillsborough County 11 Hospital Authority, 752 So.2d 712 (Fla. 2d DCA 2000), found that an extension of the statute of limitations obtained by petition to the clerk of court was not included when computing the time remaining for filing suit after receipt of notice that the negotiations were terminated. At issue was a dispute of whether the 90-day tolling provision granted upon petition to the clerk and pursuant to Florida Statutes §766.104(2) was included where an extension provision of 60-days pursuant to Florida Statutes §766.106(4) is applicable. The prior tolling provision is provided in addition to other tolling provisions, while the extension provision is provided the remainder of the statute of limitations period or 60-days, whichever is greater, in which to file suit.liv The court ruled in favor of allowing access to courts and harmonized the extension and tolling provisions. It also found that for time computation periods, the 90-day tolling period is separate and distinct as long as it is petitioned for within the limitations period. This is regardless of whether the extension of 60-days is considered a tolling or extension provision. H. Claim for Medical Malpractice Disagreement among Florida’s appellate courts has also focused on what constitutes a claim for medical malpractice regarding whether the medical malpractice prescreening procedures are applicable. The court in Wendel v. Hauser, 726 So.2d 378 (Fla. 4th DCA 1999), concluded that the medical negligence pre-suit screening procedures do not toll the time for filing an action for contribution because the definition of a "claim for medical malpractice" does not encompass claims for contribution and thus the 1-year limitations period for contribution applied. However, the following year, the First District specifically disagreed with this result in Virginia Ins. Reciprocal v. Walker, 765 So.2d 229 (Fla. 1st DCA 2000), when it held that a claim by a hospital's liability insurer to recover contribution from a physician and his professional association was subject to the statutory pre-suit screening requirements for medical malpractice claims, and timely compliance with the requirements therefore tolled the statute of limitations. 12 The court in Walker deemed that the medical malpractice statute defines all claims for medical malpractice as subject to the pre-suit requirements. Since a claim for contribution in medical malpractice necessarily arises out of a claim for the rendering of or failure to render medical care or services, the lack of any statutory distinction between a medical malpractice claim that is asserted directly by the injured party and a medical malpractice claim that is asserted by a joint tortfeasor seeking to recover a share of the loss makes reading in a different limitations period for a contribution claim improper given the policy considerations underlying the pre-suit screening procedure which are the same in either case. Although just one example, it stands to demonstrate the evolving nature of case law in the medical malpractice arena. Presumably both cases remain good law until settled by the state supreme court to the chagrin or delight of future parties in medical malpractice litigation. I. Accrual of a Medical Malpractice Case Exactly when an action accrues has been a highly contested issue among the Florida Supreme Court and Courts of Appeal. The seminal case is Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976), where the Florida Supreme Court held among other things that the statute of limitations in medical malpractice cases commences when either the plaintiff has notice of the negligent act giving rise to a cause of action or when the plaintiff has notice of the physical injury caused by the negligent act. Subsequent cases reaffirmed the Nardone principle with harsh results as a consequence in some cases.lv The requirements of a prospective claimant’s "knowledge of injury" announced by the Nardone rule certainly gave defendants a superior advantage where plaintiffs brought an action after the statute of limitations period but within the repose period. Defendants could pick the earlier of the two alternatives to begin the running of the limitation period and bar causes of action that may have been meritorious while placing a super-knowledge burden on prospective plaintiffs. The effect of this rule can be seen as counter productive and resulting in 13 an actual increase in litigation for it encourages people who may have any suspicion that their injury was caused by medical malpractice to run out and hire a lawyer or be barred from bringing any action at all. It also put patients in the precarious position of having to decipher what is and what is not medical negligence. This hindsight knowledge of injury approach took a change of direction to a more logical and workable rule, when the Florida Supreme Court announced in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), that knowledge of injury must also be accompanied by knowledge of a reasonable possibility that the injury was caused by medical malpractice. In other words, the nature of the injury alone may in some cases communicate that it was caused by medical malpractice, but in cases where the injury may have likely been caused by natural causes, the limitations period does not begin to run until there is reason to believe it was caused by medical malpractice. The plaintiffs in Tanner, parents of a stillborn child, sued the delivering health-care providers from a birth that took place on April 1, 1988. Their complaint alleged the doctors had examined the mother on March 31, 1988 and sent her to the hospital for testing the morning prior to birth of the stillborn infant. They alleged negligence on the part of the defendants and that the negligence was not known by the plaintiffs until December 29, 1989. The notice of intent to initiate litigation was filed February 12, 1990 and suit was filed August 1, 1990. The defendants moved for dismissal of the action as time barred and the trial court granted that motion which was affirmed by the appellate court, after finding that the period of limitations expired as of April 1, 1990, two years from the actual stillbirth. The court discussed the Nardone line of cases relied on by the defendants and the lower appellate court’s attempts to grapple with and ameliorate the often harsh results a literal application of that rule had in latter cases, suggesting that all the elements of a negligence cause of action should be present before running of the limitations period. Of particular concern were cases where 14 natural causes may be a likely cause making the Nardone rule counter-intuitive to notions of fairness. Even the Second District, which rendered Nardone, latter took issue with the results that case had on other medical malpractice cases. The Tanner court admitted that the new rule may make determining when the limitations period begins to run more difficult, but reasoned that the new rule was justified given the four year statute of repose absent fraudulent concealment announced in Kush v. Lloyd, 616 So.2d 415 (Fla. 1992), placing a definitive cap on medical malpractice actions and the less burdensome knowledge of injury requirement for potential claimants. Exactly when a claimant knew or was on notice of an invasion of legal rights in the medical malpractice scenario can present a fact question that precludes a granting of summary judgment against the claimant.lvi A health care provider’s diagnosis or alleged misdiagnosis is an often litigated issue. This contested issue can substantially affect a claimant’s knowledge of a reasonable possibility of medical negligence. For purposes of determining if a claimant had discovered medical negligence so as to begin the running of the limitations period, a misdiagnosis constitutes evidence that the claimant did not have the requisite knowledge that an injury was caused by medical negligence until that claimant received a correct diagnosis. lvii In some instances, counsel may face issues of a claimant’s capacity to satisfy the knowledge requirement of an injury and reasonable possibility of medical negligence. Take for instance the claimant who lapses into coma shortly after admission and treatment. This was the case in Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995), and the court held that due to the fact that the patient was comatose, he neither had notice of an injury nor knowledge that it might have been caused by malpractice so as to preclude summary judgment against him. Even though his wife had been appointed as an emergency guardian, that status did not impose a duty on her to file a malpractice claim until she stood in a representative capacity upon officially being appointed 15 as a personal representative of the patient’s estate upon his death.lviii It should be noted that when a widow or widower brings suit, a material fact issue may be raised as to when the widow/widower knew that at the time the patient’s injury was diagnosed, a reasonable possibility existed that the defendant physician acted negligently.lix Limitations issues aside, a claimant in a representative capacity must correctly plead the complaint and state a cause of action for medical malpractice so as to not be barred under defenses or motions to dismiss because of some alleged deficiency in the complaint.lx A personal representative who brings a medical malpractice action must fully comply with all pre-suit procedures as well.lxi In general, a plaintiff must comply with pre-suit requirements if seeking to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in the statute defining health-care providers.lxii In other instances, the nature of the injury alone is of a kind that can be considered “immediately apparent” so as to communicate to the prospective claimant the possibility of medical negligence.lxiii For example, in Hazen v. Kaplan, 734 So.2d 441 (Fla. 5th DCA 1999), the court held that a cause of action for medical malpractice accrued and the limitations period began to run when the patient visited his physician complaining of left shoulder pain and mentioning that he was paralyzed waist down from a myelogram. Although the claimant challenging the summary judgment entered against him relied on Tanner to argue that his injury was not the type that standing alone would indicate that medical malpractice had possibly occurred, the court citing to Tanner, 618 So.2d at 181-182, reiterated the proposition that the nature of the injury in some cases is sufficient to support the knowledge requirement and thus start the running of the limitations period notwithstanding the case in which the injury may have been a result of natural causes. This issue is necessarily fact specific and dependent on the individual circumstances of a given case. It also suggests that the Nardone rule (that the statute of limitations commences when the plaintiff 16 has notice of the negligent act giving rise to a cause of action or when the plaintiff has notice of the physical injury caused by the negligent act) is still alive in some form. Note also that for purposes of constructive notice, when a health care provider is subject to statutory requirements designed to assure that each patient is counseled about an adverse diagnostic test result for a condition that may not become symptomatic for years, the tested patient is not on constructive notice of the undisclosed test result merely because it has been filed in his medical records.lxiv Subsequent case law has covered the issue of “immediately apparent” injuries and courts have ruled both ways.lxv Of particular interest are cases in which a claimant facing a barred medical malpractice action attempts to apply the “delayed discovery doctrine” so as to preserve a cause of action.lxvi The Florida Supreme Court addressed this issue in Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000), and answered the certified question lxvii in the affirmative. Although that case did not involve medical malpractice, in discussing this doctrine the Court noted that it was not a novel principle of law and had been discussed in previous cases involving medical negligence.lxviii The delayed discovery doctrine however, may only be applied to the accrual of a cause of action and not to tolling the statute of limitations. Determining whether a cause of action is time-barred upon expiration of the statute of limitations may include an inquiry into both issues: (1) did the cause of action accrue? and (2) does a statutory tolling provision apply? Finally, the delayed discovery doctrine provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action. This last principle sounds strikingly akin to Nardone and a transgression from Tanner in which knowledge of the injury must also be accompanied by knowledge of a reasonable possibility that the injury was caused by medical malpractice. Either way, Tanner is still good law but it can be seen that it’s holding is not as broad as some may believe. J. Fraud, Concealment and Intentional Misrepresentation 17 As noted previously, an exception or tolling provision is provided for in cases involving fraud, concealment or intentional misrepresentation.lxix Concealment acts to delay a claimant’s ability to discover wrongdoing or the nature of the injury itself and requires fraud, intent to conceal or some other active element and knowledge by the tortfeasor about the patient’s condition that is not conveyed.lxx Note however that an alleged failure to diagnose does not constitute concealment as contemplated by the medical malpractice statute of limitations.lxxi Furthermore, absent fraud, concealment or intentional misrepresentation or a failure of the patient’s complaint to allege facts in support of anything akin to concealment, there is no basis for extending the 4-year repose period to seven years.lxxii Courts in Florida are still undecided on how to interpret negligent diagnosis and whether it can constitute concealment for purposes of tolling either the statute of limitations or repose. lxxiii Although prior cases seem to suggest the answer to that question is no, it can be interpreted either way in light of Nardone and Myklejord.lxxiv Generally, the fraud must be of such a nature as to constitute active concealment to prevent inquiry or elude investigation or to mislead a person who could claim a cause of action.lxxv The fiduciary confidential relationship of physician-patient imposes on the physician a duty to disclose but this is a duty to disclose known facts and not conjecture and speculation as to possibilities.lxxvi The necessary predicate of this duty is knowledge of the fact of the wrong done to the patient.lxxvii K. FTCA and Medical Malpractice Although the Federal Tort Claims Act (“FTCA”) governs federal causes of action against the U.S. as a party-defendant, similar principles related to Florida state law and the statute of limitations run parallel and are of particular interest to the attorney bringing a medical malpractice case in federal court. For accrual purposes, a medical malpractice claim does not accrue until it is determined both when the plaintiff knew of the injury’s existence and its cause.lxxviii This two-prong 18 test announced in Kubrick, 444 U.S. at 122-124 (1979), is further qualified in that the knowledge of the injury’s cause must be of an iatrogenic (doctor-caused) harm and not merely that harm occurred.lxxix An illustrative case of when a cause of action accrues in federal medical malpractice cases is Eramo v. United States,92 F.Supp.2d 1290 (M.D. Fla. 2000), where it was held that a malpractice claim did not accrue until the medical records from the infant’s birth were made available to the mother and that the mother exercised due diligence in seeking the cause of her son’s injuries. In that case, the infant had developmental problems soon after his birth at Manatee Memorial Hospital requiring among other things, 20 days in an incubator. The mother had almost immediately investigated to determine the cause of injury suffered as a result of the difficult birth and was found to have exercised due diligence by conferring with several doctors about the injury and unsuccessfully attempting to obtain medical records individually and through an attorney. Because the claim was under the FTCA, the applicable federal statute of limitations applied and the claim had to have been presented to the appropriate federal agency (here the Department of Health and Human Services) within two years after the claim accrued.lxxx Particular attention should be paid to the arguments by the defense in this case which are fact specific and focus on when the plaintiff acquired the requisite knowledge and cause to begin running the limitations period. Defendant had argued and was successful in meeting the first prong of Kubrick that knowledge of an injury had occurred; the plaintiff even conceded that point. However, the plaintiff argued and the court agreed, that the second prong requiring knowledge that the cause was iatrogenic or doctor-caused, had not been proven and therefore the action was not time barred and summary judgment for the defendant was not proper. CONCLUSION The Medical Malpractice Act in Florida is both complex and evolving. Counsel handling a 19 potential medical malpractice case must be familiar with the pre-suit requirements affecting the viability and strength of each case whether representing the claimant or health care provider. It is hoped that the above analysis demonstrates the need for careful attention to detail and how procedure can affect the substance of a cause or right of action in medical malpractice litigation. Given the rising battle among the states and nationally between plaintiff’s advocates and the insurance industry, Florida stands as a good example of an evolving system in search of balance and justice. At first impression the statute of limitations may seem like a simple calculation, however, it can be seen how in many cases it can become determinative of a given medical malpractice case. A full understanding of the statute of limitations and its relationship to other aspects of the Medical Malpractice Reform Act will enable counsel to handle these cases with confidence. i Dean v. Vazquez ,786 So.2d 637 (Fla. 4th DCA 2001) (the intention of the legislature in enacting the statutory scheme for medical malpractice claims). ii Florida Statutes Section 95.11(4)(b) (2002). iii Florida Statutes § 766.301 (2002). iv Florida Statutes § 766.301 (2002). v University of Miami v. M.A., 793 So.2d 999 (Fla. 3d DCA 2001) (finding that any issue raising the immunity of a health provider, including the issue of whether the health provider satisfied the notice requirements for compensation of the patient from the Birth-Related Neurological Injury Compensation Plan (NICA), is an issue to be decided by the administrative law judge, rather than the circuit court, as one which relates to the question of whether the claim is recoverable under the Plan). vi Florida Statutes §95.11 (2002). vii Florida Statutes § 95.11(4)(b) (2002). viii Florida Statutes §95.11(4)(b) (2002). ix Cf. Bell v. Indian River Memorial Hosp., 778 So.2d 1030 (Fla. 4 th DCA 2001) (holding that parents' action against hospital for loss or destruction of their deceased infant's remains was not an action for "medical malpractice," and thus action was not subject to medical malpractice statute of limitations; hospital personnel did not engage in any medical skill or judgment in disposition of infant's remains and were only expected to perform ministerial act of transporting infant's remains back to the parents following conclusion of autopsy). x O'Shea v. Phillips ,746 So.2d 1105 (Fla. 4 th DCA 1999) (citing J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 949 (Fla. 1994) and Florida Statutes §§ 766.106(1)(a), 766.201-212 20 (1997)). xi Weinstock v. Groth , 629 So.2d 835 (Fla.1993) (holding that a psychologist was not a health care provider and thus the plaintiff patient was not required to give pre-suit notice under the Act); cf. Preston v. Health Care and Retirement Corporation of America,785 So.2d 570 (Fla. 4th DCA 2001) (noting statutory amendments and holding that the Malpractice Act's pre-suit requirements do not apply where the plaintiff alleges only that a nursing home violated a resident's rights under Chapter 400). Also, health maintenance organizations (HMOs) have begun to assert the failure to utilize the pre-suit requirements in an attempt to thwart claimant’s benefit cases. See Solomon v. Well Care HMO, Inc., 822 So.2d 543 (Fla. 4 th DCA 2002) (reversing dismissal of the complaint where there were no allegations that the HMO was rendering medical care or services as required to invoke the application of the presuit notice requirements); Lane v. Health Options, Inc., 796 So.2d 1234 (Fla. 4th DCA 2001) (same); cf. Frappier v. Wishnov, 678 So.2d 884, 887 (Fla. 4 th DCA 1996) (no federal preemption under ERISA of case against HMO where the complaint asserts “failing to provide, arrange for, or supervise qualified doctors to provide the actual medical treatment for plan participants”). xii Florida Statutes §766.203 (2002). xiii Florida Statutes §§766.104(2) (2002), 766.203 (2002). xiv Florida Statutes §§766.104(2) (2002), 766.104(2) (2002). xv Kagan v. Pollock, 638 So.2d 151 (Fla. 1994). In Kagan v. Pollock,638 So.2d 151 (Fla. 1994), the plaintiffs sent a notice of intent to initiate litigation on May 1, 1991 as required by Florida Statutes §766.106(2). They named several defendants but had not included one physician. Two days latter, the plaintiffs filed and were granted the 90-day extension of the statute of limitations regarding all the previously named defendants. The unnamed defendant finally received notice of intent on April 20, 1992 and the complaint was amended on May 11, 1992 to reflect this defendant's inclusion in the lawsuit. As an affirmative defense, it was alleged that the amended complaint was filed after the statute of limitations period had expired and the lower court granted summary judgment for the defendant. On reversal, the 4th DCA found the plaintiff to have been aware of her injury since February of 1990 thus a strict reading of the statute of limitations would bar an action after February 20, 1992. However, considering that the plaintiffs were granted the 90-day extension, the court found the limitations period was tolled until May 20, 1992, thus negating the defendant’s statute of limitations defense. The court construed the statutory language narrowly and refused to read into the language a requirement that a defendant must be specifically named in the petition for the 90-day extension where it is not specifically provided for otherwise. As Kagan illustrates, the 90-day pre-suit investigation period reflects a balancing for both sides and in favor of allowing a prospective plaintiff access to the court. A contrary result would leave the plaintiff in the precarious position of conducting an investigation only to find out a defendant that should have been named and wasn't because of inadequate information, is now immune from suit. This holding is also consistent with promoting a curtailment of frivolous claims. xvi Florida Statutes §766.201 (2002). xvii Florida Statutes §766.106(2) (2002). See Novitsky v. Hards, 589 So.2d 404 (Fla. 5 th DCA 1991)(letter of intent to sue sent by certified mail to dentist’s malpractice insurer was not letter of intent to sue under statute’s tolling provision; however, letter of intent was not ineffective on grounds it referred to dentist as a professional association absent a showing that such a defect 21 prevented the defendant from receiving actual notice of the complaint and intent to sue). xviii Florida Statutes §766.106(3)(a) (2002). xix Florida Statutes §766.106(3)(a) (2002). xx Florida Statutes §766.106(3)(a)(4) (2002). xxi Florida Statutes §766.106 (2002); cf. Grau v. Wells, 795 So.2d 988 (Fla. 4th DCA 2001) (finding that court, as authorized by statute, could strike doctor's responsive pleadings for failure to reasonably investigate patient's claim and enter default judgment against doctor who attached affidavit of expert who was also his business partner which was completed before any discovery and before rejection of patient's claim). xxii Florida Statutes §766.104(1) (2002). xxiii Florida Statutes §766.104(1) (2002). xxiv Florida Statutes §766.104(1) (2002). xxv Florida Statutes §766.104 (2002). xxvi Florida Statutes §766.203(2) (2002); cf. Dimick-Russell v. Frankel, 734 So.2d 486 (Fla. 5th DCA 1999)(holding that providing the corroborative written medical statement with the notice of intent is not a jurisdictional requirement but is necessary to maintain the cause of action upon a motion to dismiss for failure to provide such a statement). xxvii Columbia v. Brown, 805 So.2d 28 (Fla. 4th DCA 2002). xxviii Gutierrez v. Peralta,785 So.2d 536 (Fla. 4 th DCA 2001) (ruling that the wife of a patient who brought a medical malpractice claim, was not required to file presuit notice to maintain her claim for loss of consortium against the physician because the purpose of notice requirement is to put a potential defendant on notice of alleged acts of medical negligence, and the husband's notice gave the physician adequate notice). xxix Florida Statutes §766.202(5) (2002); cf. Hord v. Taibi,801 So.2d 1011 (Fla. 4th DCA 2001) (holding that the pre-suit notice required in medical malpractice cases applies to dentists). xxx Florida Statutes §766.203(3) (2002). xxxi Florida Statutes §766.203(3) (2002). xxxii Florida Statutes §766.204(1) (2002). However, an independent special hospital district with taxing authority owning two or more hospitals has 20 days. Florida Statutes §766.204(1) (2002). xxxiii Florida Statutes §766.204(1) (2002). xxxiv Florida Statutes §766.203(2) (2002); cf. Mincey v. Moore, 814 So.2d 1041 (Fla. 1st DCA 2002) (holding that the defendant in a medical malpractice action waived the requirement that the plaintiff provide written corroborating medical opinion, where the defendant denied plaintiff's request for medical records and only offered to make copies of records for plaintiff after plaintiff filed notice of intent to sue). xxxv Florida Statutes §766.203(3) (2002). xxxvi Tapia-Ruano v. Alvarez, 765 So.2d 942 (Fla. 3d DCA 2000). xxxvii Florida Statutes §766.107 (2002). xxxviii Florida Statutes §766.207 (2002). xxxix Florida Statutes §766.207 (2002). Where both parties agree to voluntary binding arbitration (upon prior request, by the expiration of the 90-day presuit period) , non-economic damages are capped at $250,000 per incident, with a corresponding reduction thereof based upon the determination of the reduction in the claimant’s capacity to enjoy life. Florida Statutes §766.207 22 (7)(b)(2002). Florida Statutes §766.208 (2002)discusses the separate arbitration procedure for allocation of responsibility where more than one defendant has participated in the arbitration and the defendants have not agreed on the allocation. Florida Statutes §766.209 (2002) codifies recoveries where one party will not agree to arbitrate. For instance, if the claimant rejects a defendant’s offer to arbitrate, noneconomic damages are not to exceed $350,000 per incident. Florida Statutes §766.209 (4 )(a) (2002). xl Florida Statutes §766.108 (2002); see Boyd v. Becker, 627 So.2d 481 (Fla. 1993) (purpose of Act is to facilitate resolution of claims before matter goes to trial and 90-day pre-suit notice and screening period was intended to allow prospective defendant and insurer to investigate matter and determine whether claim should be settled and for what amount). xli Mason v. Bisogno,633 So.2d 464 (Fla. 5th DCA 1994). xlii Note that there are three extension and tolling provisions at play here. The 90-day pre–suit investigation phase filed 7 days before the limitations ran out, the 30-day agreed stipulation of extension and the 60-day period in which to respond to the defense’s notice of rejection. Regarding the 60-day period, the statute provides that the plaintiff has 60 days or the remainder of the statute of limitations, whichever is longer, in which to respond to the notice of rejection. In this case, the original limitations period had only 7 days left and thus the 60 days applied, in which case the 90 days and 30 days tacked on pushed the period to April 25, 1991 and adding 60 days pushed the limit in which to respond to June 24, 1991. xliii Following further amendments, the 2002 version of rule 1.650 states in pertinent part: “(3) To avoid being barred by the applicable statute of limitations, an action must be filed within 60 days or within the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was received, whichever is longer, after the earliest of the following: (A) The expiration of 90 days after the date of receipt of the notice of intent to initiate litigation. (B) The expiration of 180 days after mailing of the notice of intent to initiate litigation if the claim is controlled by section 768.28(6)(a), Florida Statutes. (C) Receipt by claimant of a written rejection of the claim. (D) The expiration of any extension of the 90-day presuit screening period stipulated to by the parties in accordance with section 768.57(4), Florida Statutes.” [Emphasis Added] Note that although the statute is tolled as of the date the notice of intent is mailed, the tolling period is measured from the date the notice is received by the prospective defendant. Boyd v. Becker, 627 So.2d 481 (Fla. 1993) xliv Musculoskeletal Inst. Chartered v. Parham, 745 So.2d 946 (Fla. 1999). xlv University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991). xlvi Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA 1991). xlvii Pergrem v. Horan, 669 So.2d 1150 (5th DCA 1996). xlviii Hankey v. Yarian, 755 So.2d 93 (Fla. 2000) (abrogating Pergrem in that regard). xlix Hankey v. Yarian, 755 So.2d 93 (Fla. 2000). l Hankey v. Yarian, 755 So.2d 93 (Fla. 2000). li This date is reached by adding the 90 days from the notice of intent and the 30 day extension stipulated to among the parties thus, 120 days from the original December 6, 1996 date is pushed forward to April 6, 1997. lii The automatic 90 days granted upon petition to the clerk of court is in addition to any other tolling 23 provision, i.e., the 90-day period upon filing the notice of intent to initiate litigation, and thus the April 6, 1997 date is again pushed to July 5, 1997 in which to bring suit, since the petition was made within the limitations period. liii For a case dealing with the thorny issue of the limit of when a case may be filed, see Thorney v. Clough, 438 So.2d 985 (Fla. 3d DCA 1983), finding that where the very last day of the statute of limitations fell on a weekend, a case filed on the next business day was timely. liv Florida Statutes §766.104(2), 766.106(4) (1995). lv Barron v. Shapiro, 565 So.2d 1319 (Fla. 1990) (reinstating summary judgment for the defendant because the plaintiff knew or should have known either of the injury or the negligent act); University of Miami v. Bogorff,583 So.2d 1000 (Fla. 1991) (finding that limitations period began to run when parents noticed an injury to their child after treatment even if they did not know if the injury was caused by medical malpractice). lvi Cardenas v. Godbold, 625 So.2d 98 (Fla. 5 th DCA 1993); cf. Gumbs v. Guerra, 2002 WL 341750 (Fla. 3d DCA 2002). lvii Higgs v. Florida Dept. of Corrections, 654 So.2d 624 (Fla. 5 th DCA 1995). lviii Florida Statutes §95.11(4)(b) (2002). lix Cunningham v. Lowery, 724 So.2d 176 (Fla. 5 th DCA 1999). lx Perry v. Schlumbrecht,724 So.2d 1239 (Fla. 2d DCA 1999). lxi Torrey v. Leesburg Regional Medical Center, 796 So.2d 544 (Fla. 5 th DCA 2001) (finding that personal representative of patient's estate failed to comply with statutory requirements designed to encourage pretrial settlements in a medical malpractice action, where verified medical expert opinion affidavit failed to specify if expert had ever been disqualified and discovery materials were not made available even though they had been requested twice, and remanding to dismiss the claim). Cf. St. Mary's Hosp. v. Bell,785 So.2d 1261 (Fla. 4 th DCA 2001) (certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements in medical malpractice actions; however, certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements). lxii Integrated Health Care Services, Inc. v. Lang-Redway 783 So.2d 1108 (Fla.2d DCA 2001) (personal representative for estate of deceased nursing home patient was not required to comply with the presuit requirements in her action against nursing homes for violations of patient's statutory rights as nursing home resident, where complaint did not allege separate claim for professional malpractice under common law). lxiii Hazen v. Kaplan 734 So.2d 441 (Fla. 5 th DCA 1999). lxiv Doe v. Hillsborough County Hosp. Authority 816 So.2d 262 (Fla. 2d DCA 2002) (holding that patient did not have constructive notice of positive results of AIDS test in hospital records). lxv Cascio v. St. Joseph Hosp. of Port Charlotte, Inc., 734 So.2d 1099 (Fla. 2d DCA 1999) (holding that nature of patient’s injury following cervical myelogram was not of the kind that was immediately apparent as being caused by medical malpractice); King v. Rojas 767 So.2d 510 (Fla. 4th DCA 2000) (finding that nature of child’s injury did not necessarily communicate to parents the possibility of medical negligence). lxvi Hearndon v. Graham 767 So.2d 1179 (Fla. 2000). lxvii The certified question was: Where a plaintiff in a tort action based on childhood sexual abuse alleges that she suffered from traumatic amnesia caused by the abuse, does the delayed discovery doctrine postpone the accrual of the cause of action? 24 lxviii Citing to Kush v. Lloyd 616 So.2d 415, 418 (Fla. 1992); cf. Holt v. Rowell 798 So.2d 767 (Fla. 2d DCA 2001) (citing to Kush to discuss the impact doctrine and noting that the impact rule does not apply to the tort of wrongful birth; the impact rule does not generally apply in recognized torts where the damages are predominately emotional, such as defamation or invasion of privacy); cf. Owens-Corning Fiberglass Corp. v. Corcoran 679 So.2d 291 (Fla. 3d DCA 1996); cf. R.J. v. Humana of Florida, Inc. 652 So.2d 360 (Fla. 1995) (noting the limitations of the impact rule). lxix Florida Statutes Section 95.11(4)(b) (2002). lxx Myklejord v. Morris 766 So.2d 1160 (Fla. 5 th DCA 2000). lxxi Myklejord v. Morris 766 So.2d 1160 (Fla. 5th DCA 2000). lxxii Myklejord v. Morris 766 So.2d 1160 (Fla. 5 th DCA 2000); Florida Statutes Section 95.11(4)(b) (2002). lxxiii Nehme v. Smithkline Beecham Clinical Laboratories, Inc. 2002 WL 1390728 (Fla. 5 th DCA 2002) (affirming Myklejord on the repose issue, acknowledging however that it is not binding precedent, and certifying to the supreme court whether concealment within 95.11(4)(b) encompasses negligent diagnosis); cf. Higgs v. Florida Dept. of Corrections 654 So.2d 624 (Fla. 5 th DCA 1995) (dealing with misdiagnosis for knowledge requirement to toll the limitations period as opposed to the repose period); Woods v. Sapolsky 2002 WL 1457939 (Fla. 1 st DCA 2002) (finding that the statute of limitations did not begin to run on the date of the doctor’s diagnosis and treatment, rather, the statute of limitations began to run when appellant acquired knowledge of the correct diagnosis on a subsequent date not specified in the complaint). lxxiv Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 2002 WL 1390728 (Fla. 5th DCA 2002). lxxv Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 2002 WL 1390728 (Fla. 5 th DCA 2002). lxxvi Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 2002 WL 1390728 (Fla. 5 th DCA 2002). lxxvii Nehme v. Smithkline Beecham Clinical Laboratories, Inc.,2002 WL 1390728 (Fla. 5 th DCA 2002). lxxviii United States v. Kubrick, 444 U.S. 111, 122-124, 100 S.Ct. 352 (1979). lxxix Diaz v. United States, 165 F.3d 1337 (11 th Cir. 1999). lxxx 28 U.S.C. 2401(b). *Mark R. Osherow is the shareholder of Mark R. Osherow. P.A., a boutique litigation firm with a principal office in Boca Raton, and satellite locations in West Palm Beach, Ft. Lauderdale, and New York City. He is a graduate of the Benjamin N. Cardozo School of Law in New York City. Mr. Osherow has been practicing law since 1988 and became a member of the Florida Bar in 1994. He is admitted to practice before all Florida state and federal courts, and is also a member of the New York, New Jersey and Connecticut bars. He concentrates in business litigation, products liability, medical negligence and other professional liability claims, insurance coverage disputes, and personal injury claims. He is a member of the Florida Bar’s Standing Committee on the Unlicenced Practice of Law and is chairperson of the Civil Practice Committee of the South Palm Beach County Bar Association. Mr. Osherow can be reached through the firm’s web site www.osherowlaw.com or e- 25 mail at email@example.com. The author would like to thank Gabriel Riveros, University of Miami School of Law, Coral Gables, Florida, Juris Doctor expected May 2003, for his assistance with this article. 26