Almengor v. Dade County, 77-924

• Decision Date: 30 May 1978
• Docket Number: No. 77-924,77-924
• Citation: 359 So.2d 892
• Parties: Hilda Yolanda ALMENGOR, as mother and next friend of Jessica Patricia Avila, Appellant, v. DADE COUNTY d/b/a Jackson Memorial Hospital, Appellee.
• Court: Florida District Court of Appeals

Page 892

359 So.2d 892

Hilda Yolanda ALMENGOR, as mother and next friend of Jessica Patricia Avila, Appellant, v. DADE COUNTY d/b/a Jackson Memorial Hospital, Appellee.

No. 77-924.

District Court of Appeal of Florida,Third District.

May 30, 1978.

Rehearing Denied July 7, 1978.

Stanley M. Rosenblatt, Greene & Cooper, Miami, for appellant.

Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellee.

Before HENDRY, HUBBART and KEHOE, JJ.

HUBBART, Judge.

The plaintiff Hilda Yolanda Almengor, as mother and next friend of her minor daughter, Jessica Patricia Avila, appeals a final summary judgment which was entered by the Circuit Court for the Eleventh Judicial Circuit of Florida in favor of the defendant Dade County d/b/a Jackson Memorial Hospital in a medical malpractice action on the ground that said action was barred by the then applicable four year statute of limitations. § 95.11(4) Fla.Stat. (1969). The plaintiff contends that the summary judgment was improperly entered because genuine issues of material fact exist as to whether the plaintiff was put on notice of an invasion of her legal rights more than four years prior to filing of the action herein. We agree and reverse.

It is the established law of this state that the statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. This occurs when the plaintiff has notice of either (1) the negligent act giving rise to the cause of action, or (2) the existence of any injury which is the consequence of the negligent act, although the injury be slight and not involve all the damages later sustained. In this connection, the plaintiff is on notice as to the contents of relevant hospital and medical records which are available to or obtainable by the plaintiff pertaining to his treatment. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958); Nardone v. Reynolds, 538 F.2d 1131 (5th Cir. 1976).

The plaintiff is not on notice, however, as to either the negligent act or the injury caused thereby where he has no actual knowledge of either fact because (1) the medical defendant or his employee, servant or agent actively engages in concealment against the plaintiff so as to prevent inquiry or elude investigation or mislead the plaintiff relating to the existence of the cause of action, or (2) the medical defendant-physician or the medical defendant through his employee/servant/agent-physician fails to reveal to the plaintiff facts (as distinguished from mere possibilities or conjecture) known to, or available to such physician by efficient diagnosis, relating to the nature and/or cause of the plaintiff's adverse physical condition. The statute of limitations is tolled upon the happening of either of the above two events. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958); Nardone v. Reynolds, 538 F.2d 1131 (5th Cir. 1976).

The plaintiff herein has filed a medical malpractice action against the defendant hospital on the...