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The statute of limitations ("SOL") is a longstanding legal doctrine. A powerful defense, SOL is based on a notion of equity or fairness. A potential defendant may be unfairly prejudiced because relevant evidence is lost and memories of witnesses fade with time.
 
SOL in Florida imposes time limits. A medical malpractice lawsuit must be commenced within 2 years from the time the incident occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence. Fla. Stat. §95.11(4)(b).
 
Mr. Smith (names changed) was diagnosed with diverticulitis. On August 18, 2007, Dr. Jones, our client, did a bowel resection followed by anastomosis; he removed a piece of the diseased intestine and then re-connected it. Mr. Smith developed post operative fever and tachycardia. He requested a second opinion from Dr. Gonzalez, who opined that he needed another surgery, because there was an anastomotic leak. Dr. Gonzalez performed surgery on August 27, 2007, followed by an ileostomy for drainage. The ileostomy was closed on February 27, 2008.
 
On February 1, 2010, Mr. Smith sued Dr. Jones alleging medical negligence. The hospital, also our client, was sued for vicarious liability. SOL would have expired on August 18, 2009. However, Mr. Smith alleged that he did not discover the alleged negligence till February 27, 2008, when the ileostomy was closed. Accordingly, SOL did not expire until February 27, 2010.
 
However, during his deposition, Mr. Smith testified that he was told by Dr. Gonzalez on August 27, 2007 that the connection between the two pieces of intestine, anastomosis, was leaking. Therefore, he was aware of the reasonable possibility that Dr. Jones was negligent on August 27, 2007. SOL began to run on August 27, 2007 and expired on August 27, 2009. The suit was filed on February 1, 2010.
The case was dismissed based on the statute of limitations.