Florida Supreme Court Rules Mailing–Not Receipt–Of Presuit Notice Tolls Medical Malpractice Statute Of Limitations

The Supreme Court of Florida stated in its April 21, 2022 Opinion: “In this case we consider the statutory presuit notice requirement that section 766.106, Florida Statutes (2018), imposes on a claimant who seeks to file a medical negligence suit. Here the claimant mailed the presuit notice before the expiration of the applicable limitations period, but the defendant did not receive the notice until after the period would have expired absent tolling. The certified conflict issue is whether the applicable limitations period for filing a complaint for medical negligence is tolled under section 766.106(4) upon the claimant’s mailing of the presuit notice of intent to initiate litigation, or only upon receipt of the notice by the prospective defendant.”

Florida Presuit Notice Requirement

Prior to commencing an action for medical negligence in Florida, a claimant is required to follow certain procedures under section 766.106. Subsection (2)(a) of the statute mandates that “a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.” Subsection (3)(a) then contemplates a “90-day period” in which the prospective defendant shall conduct a presuit investigation “to determine the liability of the defendant.” But subsection (3) references two different 90-day periods, one triggered by mailing of the presuit notice, the other by receipt of the notice. Namely, subsection (3)(a) provides in part that “[n]o suit may be filed for a period of 90 days after notice is mailed to any prospective defendant,” whereas subsection (3)(c) provides in part that “[f]ailure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.”

“Service of Presuit Notice and Tolling” provides: “The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.”

The Supreme Court of Florida stated, “To resolve the certified conflict, we determine whether the applicable limitations period for filing a medical negligence complaint is tolled upon a claimant’s mailing of the statutorily required presuit notice or only upon receipt of the notice by the prospective defendant. This requires us to interpret section 766.106 and rule 1.650.”

The Supreme Court of Florida stated, “mailing of the presuit notice triggers tolling but that, to ensure the prospective defendant receives the benefit of the full investigation period, the 90-day period is measured from the date of receipt of the notice. In other words, the applicable limitations period is also tolled during “[t]he time period between mailing and receipt” … This result is the only reasonable one under the relevant statutory and rule language. At bottom, nothing in the statute or rule imposes upon a claimant an affirmative obligation to ensure that the prospective defendant receives and signs for the notice within the applicable limitations period. On the contrary, a claimant is merely required to “notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation.” § 766.106(2)(a), Fla. Stat. And that notice must “be served within the time limits set forth in s. 95.11.” § 766.106(4), Fla. Stat.”

The Supreme Court of Florida held: “We hold that under section 766.106, Florida Statutes (2018), and Florida Rule of Civil Procedure 1.650, it is the timely mailing of the presuit notice of intent to initiate litigation, not the receipt of the notice, that begins the tolling of the applicable limitations period for filing a complaint for medical negligence.”

Source Boyle v. Samotin, M.D., No. SC20-1399.

If you or a loved one have suffered serious harm (or worse) as a result of medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Saturday, April 23rd, 2022 at 5:29 am. Both comments and pings are currently closed.

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