What’s the difference between too late and just in time? The Supreme Court of Florida just decided that a medical malpractice plaintiff who mails the required presuit notice before the expiration of the statute of limitations, even if the defendant physician has no idea about the suit because they have not received the notice, has commenced the tolling period within the applicable time limitation. However, this begs the question, why bother to require the notice be sent via certified mail with return receipt if the tolling period begins when the notice is mailed? The legislative intent of these requirements suggests that legislators believed it important that the defendant actually receive the presuit notice by requiring the plaintiff to confirm notice was received by way of return receipt.

Florida law requires plaintiffs to comply with specific presuit processes, set forth in Florida Statutes Chapter 766 and in Florida Rule of Civil Procedure 1.650. In particular, plaintiffs must provide prospective defendants with notice of their claim, which in turn triggers the 90-day investigation period that tolls the statute of limitations. Plaintiffs are also required to provide a medical expert’s opinion with the presuit notice in an effort to avoid the filing of frivolous claims. The statute of limitations allows plaintiffs two years to get this done.

In the case of Boyle v. Samotin, the Florida Supreme Court considered a certified conflict between the Second District Court of Appeal and the Fourth and Fifth District Courts of Appeal. The Second DCA held that the tolling period commences when the defendant receives the presuit notice. However, the Fourth and Fifth DCA’s ruled that the statute of limitations is tolled when the plaintiff mails the presuit notice. Although it might seem insignificant, the difference of a few days can be dispositive in a case, like it was in Boyle. Although the plaintiff mailed the presuit notice just one day before the applicable limitations period ended, resulting in the defendant not receiving the notice until four days after the notice was mailed, the Florida Supreme Court reversed the Second DCA’s ruling and held that the timely mailing of the presuit notice of intent to initiate litigation, not the receipt of the notice, begins tolling the applicable limitations period for filing a complaint for medical negligence.

As a result of the Court’s decision, plaintiffs’ attorneys may be more willing to take cases in the last hour because there is the assurance that the limitations period will not expire once notice is mailed. If the requirement is only that a plaintiff mail the notice, what happens if the notice gets lost in the mail or the plaintiff uses the wrong address? While this ruling promotes access to courts for medical malpractice plaintiffs, it provides less certainty for healthcare providers subject to potential malpractice claims in Florida.

This article was co-written by Madison Buckley, a summer associate with RumbergerKirk who is a Juris Doctorate student at University of Florida, Levin College of Law.