Abbey v. Patrick
In Abbey v. Patrick, 16 So. 3d 1051 (Fla. 1st DCA 2009), Gertrude Patrick, a patient, filed a medical negligence claim against Dr. Abbey, alleging that her recent blindness was caused by Dr. Abbey's negligence in treating her eye disorder. Abbey, 16 So. 3d at 1052. There, Patrick filed a notice of intent to initiate litigation on July 28, 2006. Id.
Dr. Abbey received the notice "on August 2, 2006, thirty-seven days before the statute of limitations would have expired." Id. Pursuant to section 766.106(4), Florida Statutes (2006), filing the notice had the effect of tolling the statute of limitations for a period of ninety days. Id. at 1052-53.
The trial court concluded that Patrick was entitled to the remaining thirty-seven days and that the additional ninety days would be added at the expiration of that time--in other words, giving Patrick one-hundred and twenty-seven days to initiate litigation. Id. at 1053.
After the thirty-seven days passed, Dr. Abbey moved for summary judgment, which the trial court denied. Dr. Abbey then petitioned the First District for a writ of certiorari, arguing that his motion should have been granted because "the statute of limitations expired before the plaintiff filed suit against him for medical negligence." Id. If
Dr. Abbey were correct that the tolled time should have been concurrent, as opposed to consecutive, then the trial court would have erred in denying his motion because the statute of limitations would have lapsed and Patrick's claim would have been time-barred.
The First District concluded that the alleged error in computing the time for filing a lawsuit did not deprive Dr. Abbey of his rights under the medical malpractice presuit screening requirements and thus, the order denying Dr. Abbey's motion did not meet the requirements for certiorari relief. See id. at 1055-56.
The district court concluded that because there was no error that deprived him of the process, Dr. Abbey was "not in a position to argue that immediate review was necessary to protect his statutory right to the process." Id.