An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 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 be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child's eighth birthday. An "action for medical malpractice" is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child's eighth birthday. This paragraph shall not apply to actions for which § § 766.301-766.316 provide the exclusive remedy.
Fabal v. Florida Keys Memorial Hosp., 452 So. 2d 946 (Fla. Dist. Ct. App. 1984), aff'd 478 So. 2d 1058 (Fla. 1985). (In an action against the state Patients' Compensation Fund for injury from a fall in a hospital, the two-year statute begins to run on the date of injury, not on the date when the plaintiff becomes aware that the Fund extends coverage to the defendant hospital.)
Powell v. Radkins, 506 F.2d 763 (5th Cir. 1975) , applying Florida law. (Statute bars an action by a woman subjected to a sterilization operation while a minor ward of the state because of mental retardation, where the action was brought more than four years after the plaintiff knew or should have known that she had been sterilized.)
Ash v. Stella, 457 So. 2d 1377 (Fla. 1984). (A factual issue exists as to whether the later discovery of inoperable cancer puts a patient on notice that a tumor existed at the time of the original treatment, where more than two years have elapsed after the correct diagnosis was made. The action was for a prior incorrect diagnosis causing fatal delay in treatment.)
Harr v. Hillsborough Community Medical Health Ctr., 591 So. 2d 1051 (Fla. Dist. Ct. App. 1991). (The court held that notice of more than the fact of injury to or death of a person is required to trigger the running of the statute of limitations against health care providers. Notice of a possible legal injury, i.e., notice of a possible invasion of one's legal rights, is necessary before it can be determined that one should have discovered the incident giving rise to the action. However, the court believed that injury was not sufficient in isolation to commence the period of limitation.)
Goodlet v. Steckler, 586 So. 2d 74 (Fla. Dist. Ct. App. 1991). (When the mother was informed of her daughter's death by a telephone call from her daughter's treating physician, the court concluded that she was informed of the type of injury which the Supreme Court of Florida intends as one of the two factors commencing the statute of limitations.)
Foley v. Morris, 339 So. 2d 215 (Fla. 1976). (An action for leaving a foreign object in the plaintiff's body during surgery accrues upon discovery of its presence, not as of the date of the surgery.)
Mott v. Fort Pierce Memorial Hosp., 375 So. 2d 360 (Fla. Dist. Ct. App. 1979). (Summary judgment is improper if fact issue exists: time of discovery by mother that child's anemia involved a foreign object in lacerated foot and infection.)
Powell v. Radkins, 506 F.2d 763 (5th Cir. 1975), applying Florida law. (Fraud perpetrated by third parties does not toll the statute, although fraudulent concealment by the defendant does.)
Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976). (Fraudulent concealment that prevents a patient from discovering his cause of action tolls the statute. The performance of a pantopaque ventriculogram on a patient in whom a ventriculoatrial shunt had been installed resulted in a coma and death. The nondisclosure of possible causes of the bad results does not toll the statute, in the absence of deliberate misrepresentations, where no request for information as to cause was made.)
Cobb v. Maldonado, 451 So. 2d 482 (Fla. Dist. Ct. App. 1984). (The court noted that § 95.11(4)B. of the Florida Statutes gives to claimants, who discover the concealment of a physician's negligence after the 4-year limitation period has run, a marked advantage over similar claimants who discover the concealment just prior to expiration of the limitation period. The court "regretfully" denied relief and urged the Legislature to act.)
Phillips v. Mease Hosp. & Clinic, 445 So. 2d 1058 (Fla. Dist. Ct. App. 1984). (An action for injuries caused by antibiotics is not barred by the lapse of the statutory period of two years where the defendant concealed the cause of the injuries (damage to 8th cranial nerve and to kidneys), continued to treat the patient, and intentionally misrepresented that her "problems were normal." Such conduct extends the period, which starts only when the "incident" (or act) and the injury become known.)
Carlton v. Ridings, 422 So. 2d 1067 (Fla. Dist. Ct. App. 1982). (Where the injury from malpractice is discovered within four years and suit is not filed before the expiration of a four-year period from that date, the malpractice claim is barred, notwithstanding the contention that the statute was tolled by fraud of the physician.)