MORRIS, Judge.
Gina Marie Bove, as personal representative of the estate of Anthony Bove, appeals a final judgment entered in favor of Naples HMA, LLC, d/b/a Physicians Regional Medical Center-Pine Ridge, Dr. E. William Akins, and Dr. Jay Wang in Mrs. Bove's medical negligence action. For the reasons we explain, we conclude that Mrs. Bove's complaint was untimely because she did not file it within two years of when she became aware of the possibility that medical negligence occurred. We therefore affirm.
The underlying medical negligence action arose after Mr. Bove died on February 26, 2012, after suffering a retroperitoneal bleed following a bone marrow biopsy performed by Dr. Akins at the direction of Dr. Wang. Both Dr. Akins and Dr. Wang are physicians at Physicians Regional Medical Center-Pine Ridge (Physicians). After the bleed was discovered, Mr. Bove was evaluated by another physician who concluded that the bleed was a co-morbid condition acting in conjunction with other underlying medical issues.
On April 19, 2012, Mrs. Bove met with Dr. Akins to review what had occurred during the bone marrow biopsy.
On February 25, 2014, Mrs. Bove, via certified mail, served Physicians with a copy of the notice of intent to pursue litigation, along with Mr. Bove's medical records and the two letters from Mrs. Bove's medical experts. Notably, however, Physicians did not receive the notice of intent until March 4, 2014. Mrs. Bove provided
Mrs. Bove served a notice of intent on Dr. Wang on May 12, 2014, and he received it on May 19, 2014. She served a notice of intent on Dr. Akins on June 11, 2014, but he did not receive it until June 16, 2014.
In the interim, Mrs. Bove filed petitions for extensions of the statute of limitations, with the first petition being filed April 30, 2014. After receiving denials of the notices of intent from all of the appellees, Mrs. Bove filed her complaint on September 8, 2014. Physicians, Dr. Wang, and Dr. Akins all filed motions to dismiss. Mrs. Bove filed responses to all of the motions to dismiss, and a hearing was conducted. Ultimately, the trial court granted the motions to dismiss with prejudice solely on the basis that Mrs. Bove failed to file her complaint within the two-year statute of limitations set forth in section 95.11(4)(b), Florida Statutes (2011).
This court reviews a dismissal of a complaint de novo. See Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002).
Mrs. Bove contends that she did not learn of the appellees' possible negligence until July 10, 2012, when she met with her attorney for the first time and,
Section 95.11(4)(b) provides in relevant part:
Mere knowledge of an injury is not enough to trigger the running of the statute of limitations; rather, a plaintiff must also have "knowledge that there is a reasonable possibility that the injury was caused by medical malpractice." Tanner v. Hartog, 618 So.2d 177, 181 (Fla.1993) (footnote omitted).
While we can foresee circumstances in which the type of incident that Mr. Bove experienced — a retroperitoneal bleed — might not be the obvious result of medical negligence, Mrs. Bove is not entitled to relief under the facts of this case. This is because, in her notice of intent served on Physicians, her attorney acknowledged that on the date of Mr. Bove's death (February 26, 2012), "the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy." Mrs. Bove argues that she should not be bound by her attorney's statement in the notice of intent because it was not evidence. Indeed, she points to her own affidavit, which she filed in response to the appellees' motions to dismiss, wherein she stated that she did not become aware of any possible medical malpractice until she met with her attorney in July 2012. But generally, parties are bound by the allegations in their pleadings, see Hart Props., Inc. v. Slack, 159 So.2d 236, 238 (Fla.1963), and within the context of judicial proceedings, "litigants are not permitted to take inconsistent positions," Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41 (Fla. 1st DCA 1970). The fact that the notice of intent was not a pleading or that the judicial proceedings had not yet begun in this case is not dispositive. The service of the notice of intent was a statutory prerequisite to filing suit,
Mrs. Bove argues that even if the statute of limitations expired on February 26, 2014, her complaint was timely filed because she not only served her first notice of intent on February 25, 2014, but also because she petitioned for extensions of the statute of limitations period. She relies on section 766.106(4), Florida Statutes (2013), to argue that because she served her notice of intent on Physicians prior to the expiration of the statute of limitations, the limitations period was tolled.
Section 766.106(4) provides that during the ninety days following service of a notice of intent, the statute of limitations is tolled as to all potential defendants. However, Florida Rule of Civil Procedure 1.650(b)(1), which deals with medical malpractice presuit screening requirements, provides in relevant part that "[n]otice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice." (Emphasis added.) And rule 1.650(d)(1) provides in relevant part that "[t]he notice of intent to initiate litigation shall be served by certified mail, return receipt requested, prior to the expiration of any applicable statute of limitations." (Emphasis added.) Thus we conclude that
Here, although Mrs. Bove sent the notice of intent to Physicians on February 25, 2014, one day before the statute of limitations expired, Physicians did not receive the notice of intent until March 4, 2014. And Drs. Wang and Akins received the notice of intent even later. Because none of the appellees received the notice of intent until after the statute of limitations expired on February 26, 2014, the statute of limitations expired, and Mrs. Bove could not revive it by filing a petition for extension of the limitations period. See § 766.104(2) (permitting the extension of statute of limitations period upon petition, but providing that "[t]he provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run").
Mrs. Bove makes the alternative argument that the issue of when she discovered the appellees' possible medical malpractice was an issue of fact that should have been decided by a jury rather than by the trial court and, therefore, that the trial court erred by ruling on the issue of the timeliness of her complaint.
In a typical medical malpractice action, this argument might have merit due to the inherent difficulties in determining when a plaintiff was not only aware of the injury but also aware that there was a reasonable possibility that the defendant's medical malpractice caused the injury. The Florida Supreme Court has recognized that in such cases, it may be difficult to decide as a matter of law when the statute of limitations begins to run and the issue may be better left for the fact-finder. See Tanner, 618 So.2d at 182. Thus in a case where there is no admission by a plaintiff as to
But here, we have an admission by the plaintiff, Mrs. Bove, that she became aware of the appellees' possible medical malpractice on the date of her husband's death. The issue of whether Mrs. Bove should be bound by her admission was one of law, and as we have already explained, the trial court properly determined that she was bound by that admission. As a result of that determination, the date of her knowledge of the appellees' possible negligence had been established, and there were no other factual disputes to be resolved. Rather, the only remaining issues were whether service of the notice of intent was accomplished when the notice was mailed or received and whether Mrs. Bove's petitions for extensions of time tolled the limitations period. But again, those were issues of law. Consequently, we conclude that the trial court was free to decide the issue of the timeliness of her complaint as a matter of law.
We hold Mrs. Bove was bound by her admission in her notice of intent that she became aware of the appellees' possible medical malpractice on February 26, 2012, and, that as a result, the trial court properly determined the issue of the timeliness of her complaint. We also hold that because her notice of intent was not received by any of the appellees prior to the expiration of the statute of limitations on February 26, 2014, the limitations period was not tolled and her complaint was untimely filed. We therefore affirm.
Affirmed.
LaROSE and SALARIO, JJ., Concur.