Court affirms dismissal of medical malpractice claim with prejudice due to the running of the statute of limitations, based on assertions made in notice of intent regarding the date plaintiff became aware of the negligence.

The Second District Court of Appeals affirmed dismissal of the plaintiff’s medical malpractice complaint as untimely because she failed to file it within two years of when she became aware of the possibility that medical negligence had occurred. The court determined that a potential plaintiff is bound by the language used in the notice of intent as if it were an actual pleading. Therefore, the deceased patient’s survivor was bound by her admission in her notice of intent that she became aware of the doctors’ negligence on the date of her husband’s death. Although the survivor had mailed one of the three notices of intent required by § 766.106(2)(a), Fla. Stat. (2013), by the deadline, none of the doctors received the notice of intent until after the statute of limitations expired. Because the date of receipt, rather than the date of mailing, was the operative date, the statute of limitations expired, and the survivor could not revive it by filing a petition for extension of the limitations period under § 766.104(2), Fla. Stat., which prohibits such revivals.

_{Case Law Alerts, 3rd Quarter, July 2016}

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