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Stephen Cain & Michael Levine Article Featured in Daily Business Review

This morning, a new article written by Stephen Cain and Michael Levine was published by Daily Business Review on Our article is about a recent opinion which determined that a plaintiff's claim was time-barred because, although the pre-suit notice was mailed in time, it was not received by the defendant prior to the expiration of the statute of repose. This decision conflicts with the Fourth and Fifth Districts, both of which have rejected the “receipt” argument. The opinion drew an interesting concurrence, which reluctantly agreed with the majority based upon stare decisis, but explained in detail why the decision is wrong. This case is yet another example of malpractice cases often presenting a trap for claimants.

Our article also highlights how medical malpractice cases, in addition to being more expensive, come with procedural obstacles that could hurt a plaintiff's case.

Unlike many other injury claims, prior to filing a lawsuit, Florida law requires victims of medical malpractice to mail written notice to the defendants to allow them 90 days to conduct their own investigation. Ideally, this process was designed to filter out frivolous suits and allow defendants to settle meritorious claims.

During that 90-day investigation period, the statute of limitations is “tolled” or paused. However, when does that tolling period begin? When the notice is mailed, or when it is received? The answer to that question may depend on what part of the state the claim arises. As we discussed in our article, the Second District ruled that the limitations period does not toll until the notice is received. In other parts of the state, however, it is the mailing of the notice that triggers the tolling period.

Court Rules in Favor of Physician Over Delayed Mail

In Boyle v. Samotin, a plaintiff mailed a physician written notice of their intent to sue within a day of the four-year statute of repose. However, the physician didn't sign for the letter until three days after the statute of repose. If the tolling period began when the letter was mailed, the plaintiff's case could proceed. However, the Second District court ruled that the tolling period didn't begin until the physician received the letter. This resulted in a summary judgment dismissing the case in favor of the physician.

The ruling in this case contradicts the ruling of two other courts. The Second District certified conflict with the Fourth District and Fifth District, which have both ruled that the tolling period begins when pre-suit notice is mailed.

Our article explains why this decision will only make it more difficult for medical malpractice victims to hold negligent physicians and hospitals accountable for their harm.

Read the article in full on Daily Business Review.