FLORIDA’S NURSING HOME STATUTE OF LIMITATIONS CONTAINS THE DELAYED DISCOVERY LANGUAGE
(posted June 2013)
F.S.A. § 400.0236 states in pertinent part:
(1) Any action for damages brought under this part 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.
(2) In those actions covered by this subsection in which it can be shown that fraudulent concealment or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time that the injury is discovered with the exercise of due diligence, but in no event for more than 6 years from the date the incident giving rise to the injury occurred.
Several interesting observations can be made based on the statutory language. First, the primary statute of limitations contains the traditional delayed discovery language, which extends the commencement of the statute of limitations, to the objectively reasonable moment in time when the deviation from the standard of care, is coupled with knowledge of harm caused thereby. Next, we see a general four (4) year statute of repose from the date of the incident, as setting the outside boundary of the discovery doctrine.
Subsection (2) has become a favorite vehicle of the plaintiff attorney who seeks to escape the normal confines of the statute of limitations. Simply by alleging intentional concealment or intentional misrepresentation, the statute is extended and the repose period is further extended as well. The typical assertion is that the records were not kept as required, or that they have been altered.
Practice Tip – Look carefully at the allegations of the complaint or demand to determine if the statute of limitations defense is facially available, and look closely at the sufficiency of any allegations being used to extend a blown statute of limitations.