Guardianships are an area of my practice that requires a lot of finesse when counseling clients who are serving conflicting roles when trying to make decisions in the name of the ward.

What is a guardian?

Typically, a guardian is a person (or sometimes an entity, such as a financial institution), who is appointed by the court to handle another person’s real and personal property and/or to take care of the person (referred to as “the ward.”) Read the rest of this entry

When is a Guardian barred from suing the doctors that allegedly caused her daughter’s brain damage?

Mrs. Thomas was named as plenary guardian for her daughter, Tammy, after Tammy suffered a heart attack and brain damage while giving birth to her baby.  Mrs. Thomas claims that Tammy wouldn’t have been hurt, except for the doctor taking too long to deal with Tammy’s high blood pressure.  On Tammy’s behalf, and she sued the doctor, the hospital, and others.

The trial court ruled that Mrs. Thomas took too long to bring the lawsuit, and it was barred as a matter of law by the Florida Medical Malpractice Statute of Limitations.  Under that Florida law, Mrs. Thomas has two (2) years to file suit.  Calculating  that deadline is key: on what date does time begin to run for the plenary guardian?

The appellate court answered that question by sending the case back to trial, ruling: (1) Guardians have a special limitations statute (744.394, Florida Statutes (2003)) that needs the exact date that the cause of action accrued for calculation; (2) when someone is incapacitated, the limitations deadline is put on hold so the defendant cannot unjustly benefit; (3) when an adult is incapacitated, it cannot be assumed that anyone else acts for them until they are legally appointed to do so; and (4) it becomes a question of fact in these situations as to when the adult’s legal guardian should have known or discovered with reasonable diligence that there was a possibility of a doctor’s error or medical negligence.  Back in the courtroom, Mrs. Thomas would have to prove that the date she knew or should have discovered the medical errors was within the limitations period.

Practitioner Point: Statutes of limitations are complicated, and suits over when that time bar truly exists are expensive for all involved.  From a probate litigation standpoint, the faster that investigations begin and facts are accumulated, the better the chances of victory in any limitations fight.

Real World Point: Guardians like Mrs. Thomas, acting on behalf of a loved one’s best interests, deal with such a burden: there’s the emotional toll, as well as the decision-making, record-keeping, and other details and duties.   Still, the adage is true:  the earlier the better when it comes to filing suit.

Sarah Thomas, as Plenary Guardian, etc., Appellant, v. Fernando Lopez, M.D., et al., Appellees, 33 Fla. L. Weekly D 1072 (April 18, 2008) Appeal from Orange County Circuit Court Judge Reginald Whitehead, to the Fifth District Court of Appeals (Opn: Justice Orfinger, Justices Torpy and Lawson concurring)