Worrell v. John F. Kennedy Memorial Hospital, Inc.

• Decision Date: 28 May 1980
• Docket Number: Nos. 78-750,78-869,s. 78-750
• Citation: 384 So.2d 897
• Parties: Julian WORRELL and Roselynn Worrell, his wife, et al., Appellants, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 897

384 So.2d 897

Julian WORRELL and Roselynn Worrell, his wife, et al., Appellants, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., et al., Appellees.

Nos. 78-750, 78-869.

District Court of Appeal of Florida, Fourth District.

May 28, 1980.

Rehearing Denied July 10, 1980.

David T. Price of Price & Byrne, Fort Lauderdale, for appellants.

Jack Miller of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellee, John F. Kennedy Memorial Hospital, Inc.

Marjorie Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellees, Stanley Dober, M. D., Alan B. Cohen, M. D., and H. John Richmond, M. D.

BERANEK, Judge.

This is an appeal by plaintiffs from an adverse final judgment based on the statute of limitations. The plaintiffs sued defendants/appellees who were physicians and a hospital. The complaint alleged that defendants negligently administered and/or monitored an overdose of a particular drug resulting in the death of plaintiffs' son, a minor. The death was alleged to have occurred almost simultaneously with the treatment on January 14, 1973. The question is whether the eventual suit based on the alleged medical malpractice and death of the child was barred by the applicable statute of limitations. In response to the complaint, the defendants filed answers denying negligence and affirmative defenses based on the statute of limitations. Motions for summary judgment were filed by each defendant raising the statute of limitations as a defense. In these motions it was stated that the plaintiffs' cause of action accrued on January 14, 1973. Plaintiffs filed no Reply seeking to avoid the defenses pursuant to Rule of Civil Procedure 1.100(a). The trial court granted summary judgment in all defendants' favor based upon the statute of limitations.

On appeal plaintiffs assert the defendants/doctors fraudulently concealed their alleged negligence and that plaintiffs did not become aware of the true cause of the minor's death until December, 1976. There were no pleadings supporting the argument of concealment nor were there pleadings alleging when plaintiffs actually became aware of the alleged malpractice. These arguments on appeal are based only upon comments in depositions.

On January 13, 1977, plaintiffs filed a medical mediation claim which proceeded to a hearing before a mediation panel and a decision on July 18, 1977. ¹ After the panel's decision, suit was filed on August 31, 1977. The trial court thereafter granted summary judgment for all defendants and plaintiffs now seek reversal. ² In summary the important dates are as follows:

Our decision requires tracing the development of the statute of limitations as applicable to medical malpractice claims and to wrongful death claims. In the early 1940's the limitations in effect were Section 95.11(4) and (6), Florida Statutes (1943). These provisions were:

Actions other than those for the recovery of real property can only be commenced as follows:

(4) WITHIN FOUR YEARS Any action for relief not specifically provided for in this chapter.

(6) WITHIN TWO YEARS An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment: an action arising upon account of an act causing a wrongful death.

Under this statute, medical malpractice was governed by the four-year provision of subsection (4), and wrongful death by the two-year provision of subsection (6). No statutory distinction was made between death due to medical negligence and death due to any other negligence. The accrual of a wrongful death cause of action occurred at time of death, rather than notice of the defendants' negligence.

This general scheme of a four-year limit and two-year limit was maintained and continued substantially unchanged for a number of years through the late 1960's last appearing as Section 95.11(4) and (6), Florida Statutes (1969). A change occurred in the 1971 legislative session via Laws of Florida 71-254. Section 95.11(6) was amended as follows:

(6) Within two years An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; an action arising upon account of an act causing a wrongful death; an action to recover damages for injuries to the person arising from any medical, dental, optometric, (podiatric) or chiropractic treatment or surgical operation, the cause of action in such case not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

This Act, Section 95.11(6), Florida Statutes (1971), took effect July 1, 1972, and removed medical malpractice from the prior four-year limitation and placed it within the two-year limitation. This amendment was the first "notice accrual" statute in that the cause of action for injuries from medical malpractice was deemed to have accrued only when the plaintiff had notice of the injury. A reading of subsection (6) quoted above leads us to the conclusion that there was no intention to include wrongful death within the Notice accrual provisions applicable to injuries from medical treatment. Thus, the limitation provided for wrongful death remained two years from death. See St. Francis Hospital Inc. v. Thompson, 159 Fla. 453, 31 So.2d 710 (1947); Fletcher v. Dozier, 314 So.2d 241 (Fla. 3d DCA 1975); Walker v. Beech Aircraft Corp., 320 So.2d 418 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2nd DCA 1976); and Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975). As stated in Fletcher v. Dozier at 241 and 242, "The cause of action accrues and the statute commences to run on the date of such death." This is the statute which was in effect on January 14, 1973, the date of death involved in the instant case.

An amendment to Section 95.11(6), Florida Statutes (1971), occurred in Laws of Florida 73-333, effective August 5, 1973, when the word "podiatric" was removed, and the word "chiropodial" substituted.

The next substantive amendment applicable to medical malpractice occurred in the 1974 legislative session as Laws of Florida 74-382, effective January 1, 1975. This change appeared as Section 95.11(4)(a) and (c), Florida Statutes (Supp.1974), and accomplished a substantial re-wording of the general statute of limitations section. The subsections in question were 95.11(4)(a) and (c), providing:

(4) Within two years.

(a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional;

(c) An action for wrongful death.

Under the 1974 amendment the two-year limitation for wrongful death was maintained and the accrual provisions regarding medical malpractice were changed from discovery of the "injury" to discovery of the "cause of action." This amendment was effective for two weeks before January 14, 1975, which was the point in time two years from the date of death of plaintiffs' minor son herein. If this statute had the effect of extending the statute of limitations, then plaintiffs should be able to take advantage of it. This statute containing the words "cause of action" was in existence for only four months and 20 days.

In the 1975 legislative session, Laws of Florida 75-9, effective May 20, 1975, was passed and again substantially revised the statute of limitations on medical malpractice. In accordance with this amendment Section 95.11(4)(b) and (d), Florida Statutes (1975), provided as follows:

95.11 Limitations other than for the recovery of real property. Actions other than for recovery of real property shall be commenced as follows:

(4) WITHIN TWO YEARS

(b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.

(d) An action for wrongful death.

Once again, the notice accrual provision was changed; the words "cause of action" were stricken and the words "incident or occurrence" substituted. For the first time, a definition of medical malpractice was specifically stated and included death although the two-year wrongful death subsection (d) remained unchanged. This statute places a four-year limitation (not extension) on the bringing of the action from the original incident regardless of when the incident is discovered or a seven-year limitation if fraudulent concealment is involved. There had been no such four-year or seven-year limitations in the prior statutes...