Florida Appellate Court Applies Excusable Neglect In Reviving Medical Malpractice Case

The District Court of Appeal of Florida Second District (“Florida Appellate Court”), in its opinion filed on May 8, 2019, applied the doctrine of excusable neglect in reviving a Florida medical malpractice case that the trial court dismisssed because the plaintiffs’ Florida medical malpractice lawyer missed a filing deadline.

The Underlying Facts

A husband and wife filed their Florida medical malpractice lawsuit against a Florida medical provider. The husband died during the course of the litigation from unrelated causes. The plaintiffs’ Florida medical malpractice lawyer filed a suggestion of death but did not serve a motion to substitute the personal representative of the husband’s estate within ninety days as required by Florida Rule of Civil Procedure 1.260(a)(1), or seek an extension of time within which to do so.

A week after the ninety-day period passed, the defendant moved to dismiss the plaintiffs’ medical malpractice lawsuit with prejudice. At the hearing on the motion to dismiss, the plaintiffs’ lawyer presented the court with an affidavit detailing a health issue she had been experiencing and explaining how the condition was responsible for her failure to timely file the motion to substitute. After reviewing the affidavit and hearing argument, the trial court concluded that the plaintiffs’ lawyer had not shown excusable neglect and granted the motion to dismiss with prejudice because the statute of limitations on the plaintiffs’ medical malpractice claims had expired.

Florida Appellate Court Opinion

The Florida Appellate Court stated that Florida courts have a long-standing tradition in favor of the disposition of an action on its merits, and that rule 1.260 has been liberally interpreted to permit substitution beyond the ninety-day time period. Moreover, all doubt should be resolved in favor of allowing trial upon the merits. Furthermore, courts should be liberal when determining excusable neglect because while the procedural rules provide for an orderly and expeditious administration of justice, care must be taken to administer them in a manner conducive to the ends of justice.

Applying these principles, the Florida Appellate Court held that the plaintiffs’ lawyer made a sufficient showing of excusable neglect and therefore reversed and remanded the case to the trial court.

A dissenting opinion stated, in part: “Because the trial court’s finding that Counsel failed to establish excusable neglect is based on a credibility determination that is supported by the record, I would affirm the final judgment as it pertains to [the husband’s] claims.” (The plaintiffs’ lawyer offered an affidavit in which she asserted that she failed to timely substitute parties due to memory lapses and brain fog she was experiencing as a result of undiagnosed hypothyroidism. She further asserted that she had started noticing the memory lapses and difficulty with name recall in the months preceding August 2016. She was diagnosed with hypothyroidism and began taking medication in September 2016. She did not provide an affidavit from her physician, but she provided a doctor’s note dated November 2016 vaguely stating, “Due to this patient’s medical illness which she had been unaware of she has been having cognitive changes.””)

Source Sammons v. Greenfield, Case No. 2D17-755.

If you or a loved one were injured as a result of medical malpractice in Florida or elsewhere in the United States, you should consult with a Florida medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your state who may assist you.

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This entry was posted on Friday, May 24th, 2019 at 5:25 am. Both comments and pings are currently closed.

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