Abston v. Bryan, 86-1889
| Decision Date | 11 February 1988 |
| Docket Number | No. 86-1889,86-1889 |
| Parties | 13 Fla. L. Weekly 434 Dorothy Fay ABSTON, et al., Appellants, v. Floyd T. BRYAN, M.D., et al., Appellees. |
| Court | Florida District Court of Appeals |
Arthur J. Ranson, III, Orlando, for appellants.
Geoffrey D. Ringer, of Maguire, Voorhis & Wells, P.A., Orlando, for appellee Bryan.
Gregory S. Stark, Orlando, for appellee Holmes Regional.
The plaintiffs below, Dorothy and Ernest Abston, sued Dr. Bryan and Holmes Regional Medical Center for medical malpractice, alleging the defendants were negligent in allowing a foreign object (a laparotomy pad) to be left in Dorothy's body during surgery performed on January 11, 1984. As a result, she suffered pain and discomfort, necessitating a second surgical procedure on January 24, 1984, to remove the pad and an infected rib area.
Dr. Bryan responded to the complaint with a motion to dismiss, asserting that it affirmatively appeared upon the face of the complaint that the action was barred by section 95.11, Florida Statutes (1985), the two-year statute of limitations for medical malpractice actions. The motion pointed out that the corrective surgery allegedly was performed on January 24, 1984, and that the complaint was not filed until April 25, 1986, more than two years later. On May 23, 1986, Holmes filed an answer to the complaint. On June 16, 1986, 23 days later, Holmes filed an amended answer raising the limitations defense, and a motion for judgment on the pleadings. This amended answer was filed without leave of court. Plaintiffs moved to strike the amended answer, which motion was subsequently denied. After a hearing on these various motions, the trial court found the plaintiffs' action barred by the applicable statute of limitations and entered judgments for both defendants.
On appeal the plaintiffs first contend that the allegations on the face of the complaint (the pertinent consideration for motions to dismiss and for judgment on the pleadings) do not establish that the applicable statute of limitations began to run on January 24, 1984. We find this contention without merit in view of our reading of those allegations, which clearly show that the plaintiffs knew of their cause of action at the time of the second surgery.
The plaintiffs also claim that, even if they had two years commencing January 24, 1984, within which to file their complaint, the statute of limitations (section 95.11) was tolled. They argue that subsections (2) and (3)(a) of section 768.57 of the 1985 Medical Malpractice Act precluded them from filing suit until at least 90 days after service of the notice of intent on December 5, 1985--in other words, until March 6, 1986, the 91st day after service of the notice. Plaintiffs argue that, at the time of service of their notices of intent on December 5, 1985, they had 50 days left within which to file suit. When the 90-day tolling period expired on March 5, 1986, the 50 days began to run and did not expire until April 24, 1986. The initial complaint in this case was actually received by the clerk of the circuit court for filing on April 22, 1986, but returned due to the failure to pay a filing fee. Plaintiffs argue that the failure to pay is irrelevant, and that the operative date for purposes of the statute of limitations is April 22. We agree. Every action is deemed commenced when the complaint is "filed." Fla.R.Civ.P. 1.050. For a complaint to be "filed" it is not necessary that the fee be paid, only that the complaint be received by the clerk of the court. See Outboard Marine Domestic International Sales Corp. v. Florida Stevedoring, Corp., 483 So.2d 823 (Fla. 3d DCA 1986). That delivery occurred in the instant case two days prior to the expiration of the tolled statute of limitations, and, thus, the complaint was timely filed.
Appellees/defendants counter the tolling argument by claiming that there could be no tolling of the two-year period because of plaintiffs' failure to file the notice of intent. Section 768.57(4), Florida Statutes (1985), provided as follows:
(4) The notice of intent to initiate litigation shall be filed within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of...
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