Nardone v. Reynolds
| Decision Date | 19 May 1976 |
| Docket Number | No. 47109,47109 |
| Citation | 333 So.2d 25 |
| Parties | Nicholas NARDONE, an infant by his father and next friend Nicholas H. Nardone, and Nicholas H. Nardone, Individually, Appellants, v. David H. REYNOLDS et al., Appellees. |
| Court | Florida Supreme Court |
Abraham H. Shukat, Miami Beach, Alfred S. Julien and David Jaroslawicz, New York City, for appellants.
S. O. Carson and Edward J. Atkins, of Walton, Lantaff, Schroeder, Carson & Wahl, James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Henry Burnett of Flowler, White, Burnett, Hurley, Banick & Knight, and Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellees.
Pursuant to Rule 4.61, Florida Appellate Rules and Section 25.031, Florida Statutes, this cause is before us on certificate from the United States Court of Appeals, Fifth Circuit, in an appeal from the decision of the United States District Court, Southern District of Florida, which held that the malpractice action instituted by appellants in 1971, was barred by the Statute of Limitations and, accordingly, granted the motions for summary judgments of the several defendants-appellees. The following questions have been certified to us based upon the following recited facts:
'I. In a medical malpractice case does the period of limitation (F.S.A. 95.11(4)) commence:
(a) As to the parents and legal guardians of the incompetent minor in their own right
(b) As to the parents and legal guardians of the incompetent minor as next friends in behalf of the minor
(c) As to the incompetent minor in his own right when the parents and legal guardians of the incompetent minor have (i) knowledge of the physical condition and the drastic change therein during the course of medical treatment, but (ii) do not then have (or are not charged with having) knowledge that such physical-mental condition was caused in whole or in part by acts or non-acts of the alleged malpractitioners?
II. Is knowledge of the contents of the medical doctor, hospital, etc. records concerning the incompetent minor patient which are of a character as to be obtainable by, or available to, the patient (or guardian) but the contents of which are actually not known, imputed to:
(a) The parents and legal guardians of the incompetent minor in their own right?
(b) The parents and legal guardians of the incompetent minor as next friends in behalf of the minor?
(c) The incompetent minor in his own right?
III. Under the Florida doctrine of tolling limitations by fraudulent concealment, where there is knowledge by the parents of the incompetent minor of the physicalmental condition but not the cause as set forth in I above, does non-disclosure by one or more of the alleged malpractitioners of possible causes of the such condition unaccompanied by mispresentation toll the statute:
(a) as to all of the alleged malpractitioners?
(b) as to individual alleged malpractitioners who did not participate in the asserted 'concealment'?
IV. Where there is knowledge by the parents as set out in I and III above but no request by them for such information did the alleged malpractitioners, each considered individually, have:
(a) a duty to make disclosure to the parents of the records and the essential, material significant facts relating to possible or likely causes of the minor patient's condition and change therein?
(b) If the answer to (a) is 'yes' what is the consequence if any on the statute of limitations?'
Following an evaluation by Dr. Chiles, an eye specialist, Nicholas Nardone, age 13, who had been experiencing difficulty with coordination, blurred vision, dyplopia and headaches, was admitted to Jackson Memorial Hospital in January, 1965, where he underwent four brain operations in January, February, and March, and various diagnostic procedures. After initial evaluation by Dr. Chiles, he was transferred to the care of appellee, Dr. Reynolds, who, after examination of Nicholas, performed an exploratory craniotomy on January 26, 1965, and finding an obstruction of the sylvius aqueduct, inserted a Torkildsen tube (shunt), designed to by-pass the aqueduct and to permit the flow of spinal fluid between the ventricles of the child's brain into the right side of the child's head. Following this surgery and insertion of the tube for a period of two weeks, Nicholas suffered from Tachypnea, tachycardia, respiration difficulty, increased intracranial pressure, high temperatures, symptoms of subdural hemorrhaging, symptoms of hypoxia, bilateral facial paresis, restlessness, irritability, abnormal protein level, 'white blood cell count level, blood in the cerebrospinal fluid, periods of increased blood pressure and tremors.' In Dr. Reynold's absence, the hospital called in Dr. Sheffel to assist in observation of the child's postassist progress. On February 12, 1965, Dr. Sheffel replaced the Torkildsen tube installed by Dr. Reynolds with a ventriculoatrial shunt, an operation performed without the presence of Dr. Reynolds, and during this operation, evacuated a copious amount of Xantho chronic fluid beneath the subdural membrane which had been exerting pressure on the infant's brain. Following this procedure, there was an encouraging, marked, and steadily progressive improvement in his condition. His progress was such that on February 22, his birthday, his mother was told that he would be able to go home in two weeks when he could have his birthday party. The shunt inserted by Dr. Sheffel was operating properly at this time.
Although apparently unclear from the record, briefs and oral argument, Reynolds, Sheffel or both permitted a pantopaque ventriculogram, a diagnostice procedure wherein dye is introduced into the ventricles of the brain, to be performed on the child on February 25, 1965, which procedure, appellants contend is contrary to proper procedure when there is a shunt, and which procedure appellants contend was negligently performed. None of the Appellees-defendants admit to performing this procedure although the hospital record on the report of radiological consultation dated February 25, 1965, is signed by defendant Gargano, a radiologist employed by Jackson Memorial Hospital. The hospital records pertaining to the pantopaque ventriculogram notes that some of the pantopaque entered the shunt tube and veins of Nicholas' neck. Appellants contend that Dr. Gargano conceded that retention of the dye in the shunt rendered it non-functional and Dr. Sheffel testified that one of the objectives of maintenance of a shunt is to see that it does not become obstructed. After the PPV procedure, the child's condition worsened.
From February 25 to March 6, 1965, he exhibited symptoms of subdural pressure, suffered from constant headaches, was difficult to arouse, stopped talking, was drowsy and incoherent, had spiking temperatures and experienced projectile vomiting. On March 7, he could not be aroused, and in an effort to relieve brain pressure, Dr. Sheffel performed an emergency operation evacuating 250--300 ces of yellow subdural fluid and, at this time, champed off the shunt. After the operation Nicholas remained in a comatose state. Further surgery was performed by Dr. Reynolds on March 15, 1965, following which the patient did not improve but rather remained in a vegetative condition.
Upon discharge from the hospital in July 1965, the child's condition was comatose, totally blind. He had suffered irreversible brain damage.
The parents were told and knew that this was the infant's condition prior to his discharge--totally blind, no longer able to walk and beyond help or hope of recovery--although they were not specifically told of the pantopaque ventriculogram or the posible causes of the son's ultimate condition.
The parents testified that they were not told that the PPV would be administered, that they never heard the term, and that no one at the hospital told them that it had been performed; and testified that as to the cause of the boy's condition, they were told that these things happen. None of the physicians sought to disclose the course of treatment to the parents although apparently not requested by them to do so.
After discharge, Nicholas was taken to the family's temporary home in Hollywood, Florida, where he was under the care of Dr. Dobbrunz (not a party to the suit). Following discharge from the hospital in July, 1965, none of the defendants had any further contact with the child.
With one exception, to be explained below, no request for records, charts, or information pertaining to the child's hospitalization was ever directed to any of the defendants. Records were available from the hospital at all times upon request.
In September, 1965, Nicholas was admitted to the Columbia Presbyterian Hospital, New York (hereinafter referred to as Columbia) for evaluation where he remained under the care of neuro-surgeons until discharge on October 19, 1965. The physicians at Columbia requested the hospital record from Jackson Memorial Hospital. Appellants contend that Jackson Memorial sent excerpts of the record consisting of the discharge summary, operative reports of January 26th, and March 15, 1965, a radiological report dated November 24, 1965, which contained references to a January 21, 1965, skull film, a neuro-encephalogram dated January 26, 1965, and several anteriograms, and contend that the records not sent to Columbia included records of February 12, 1965, and March 7, 1965, relating to surgery performed by Dr. Sheffel, radiological consultations including the PPV, the doctors' orders, progress records, and nurses' notes.
Upon examination and consideration of the supplied records, Dr. Vicale of Columbia stated in his final diagnosis and report, as follows:
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