As noted by the Supreme Court of Florida, the Statutes of Limitations were created to put limits on how long a plaintiff could wait to bring a cause of action. The purpose was "to protect defendants against unusually long delays in filing of lawsuits and to prevent unexpected enforcement of stale claims." The United States Supreme Court is in accord with this philosophy and has noted:

"In such cases, how resolutely unfair it would be to award one who has willfully or carelessly slept on his legal rights an opportunity to enforce an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses. Indeed, in such circumstances, the quest for truth might elude even the wisest court."

In Florida, the statute of imposing limits on the time available to bring claims has been amended on many occasions. The most recent amendment provides:

"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... 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 within the 4 year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered..."

It would seem that this statute does, and should, afford the defendant/physician protection against aged claims. Unfortunately, the statute has been whittled down in recent years by court decisions so that it is more difficult than ever to raise it as a defense in a medical malpractice action.

In considering the statute, the first element to be looked at is when you begin counting the years within which the suit can be brought. The statute proclaims that the clock starts at the time the "incident" occurred, or from the time the "incident" was discovered, or should have been discovered with the exercise of due diligence. The most recent court decisions have defined the word "incident" to encompass the following: (1) The medical procedures, (2) negligently performed, (3) which causes damages to the patient. In other words, under these decisions it is not sufficient that a plaintiff merely know that he has been injured, but he must also know that the injury occurred as the result of a negligent act by the physician. In most cases the plaintiff is able to raise a question of fact as to when he knew or should have known of one or more of these necessary elements. When this occurs, the trial court judge may not throw a case out, but, rather, must submit it to a jury for their determination. It is then up to the jury to determine when the patient knew, or should have known, of each of these elements. If the cause of action is brought more than two years after the date when the patient knew, or should have known, then it would be barred by the Statute of Limitations. However, this will most often be left for a jury determination. As might be expected, it is most difficult to convince a jury to eliminate what might be a plaintiffs only recourse for a very serious injury based on their failure to bring the case in an appropriate time. By forcing the matter to juries and out of the hands of the trial judge, the defense becomes less tenable.

The statute also provides for a cutoff of four years from the date of the occurrence (medical procedure), regardless of when the patient discovered, or should have discovered, the elements noted above. It would seem that four years would then be the absolute maximum within which a plaintiff could bring a case. However, this has also been extended under certain circumstance. If a patient could not have known with the exercise of reasonable diligence of his cause of action within four years, the Statute of Limitations will not bar the bringing of the case. The courts have noted that to do so would unconstitutionally deprive plaintiff of access to the courts. In such circumstances even if beyond the four years, plaintiff will still be allowed to demonstrate that he has acted within two years from the time he knew, or should have known, of the cause of action.

There is another circumstance which can toll or extend the Statute of Limitations. This occurs when the plaintiff is able to demonstrate that either fraud, concealment, or misrepresentation of fact prevented the discovery of the injury within the appropriate time. Under such circumstances the limitation period is extended two years from the time it has been discovered, or should have been discovered, to a maximum of seven years from the date of the occurrence. Traditionally, fraud required intentional misrepresentation of fact. However, the Supreme Court has recognized a fiduciary relationship between a physician and his patient.

"Where an adverse condition is known to the doctor, or readily available to him through efficient diagnosis, he has a duty to disclose and his failure to do so amounts to a fraudulent withholding of the facts sufficient for the running of the statute."

The court went on to state that:

"Where the symptoms or the condition is such that the doctor in the exercise of reasonable diligence cannot reach a judgment as to the exact cause of the injury in question and merely can conjecture on the possible or likely causes, he is under no duty to disclose a conjecture of which he is not sure.”