After receiving an autologous transfusion during a surgery to remove uterine fibroids, a Florida woman died. Her estate served successive notices of intent to initiate litigation against the various health care providers who participated in the surgery. Pursuant to statute, each notice tolled the statute of limitation as to “all potential defendants.” Thus, the two-year statute of limitation for medical malpractice was effectively extended to three and a half years.

Three years after the decedent died (and with 6 months remaining on the medical malpractice statute of limitation), the estate amended its medical malpractice lawsuit to bring a claim against the manufacturer of the cell savage machine that was utilized in the autologous transfusion.

Representing the manufacturer of the cell salvage machine, Campbell Conroy & O’Neil promptly filed a Motion to Dismiss with Prejudice arguing that the claim against the manufacturer was a wrongful death claim premised on products liability, not a wrongful death claim premised on medical malpractice. Therefore, the manufacturer was not a “potential defendant” that was subject to the tolling provisions of the Medical Malpractice Act.

Agreeing that the medical malpractice statute of limitations (and its various tolling provisions) did not apply to a manufacturer, the trial court concluded that the claim against the manufacturer was filed beyond the two-year statute of limitations for wrongful death actions. Consequently, the trial court granted Campbell Conroy & O’Neil’s Motion to Dismiss with Prejudice.