Almengor v. Dade County, No. 77-924

CourtCourt of Appeal of Florida (US)
Writing for the CourtHUBBART
Citation359 So.2d 892
PartiesHilda Yolanda ALMENGOR, as mother and next friend of Jessica Patricia Avila, Appellant, v. DADE COUNTY d/b/a Jackson Memorial Hospital, Appellee.
Decision Date30 May 1978
Docket NumberNo. 77-924

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.

Page 894

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...

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26 practice notes
  • Walls v. Armour Pharmaceutical Co., No. 89-1705-CIV-T-23B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 19, 1993
    ...Johnson v. Deluxe Tire Service, Inc., 544 So.2d 1158, 1160 (Fla. 5th DCA 1989) (automobile accident case); Almengor v. Dade County, 359 So.2d 892, 894 (Fla. 3d DCA 1978) (medical malpractice case); University of Miami v. Bogorff, 583 So.2d 1000, 1002 (Fla.1991) (medical malpractice part of ......
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...the statute of limitations does not begin to run until plaintiff is able to discover the negligence. Nardone; Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Buck v. Mouradian, 100 So.2d 70 (Fla. 3d DCA), cert. denied, 104 So.2d 592 Questions of fact pertaining to the statute of ......
  • Roberts v. Casey, No. 80-335
    • United States
    • Florida District Court of Appeals
    • April 21, 1982
    ...has been put on notice of an invasion of his legal rights. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). This occurs when the plaintiff has notice of either the negligent act which causes the injury or the existence of an injury whi......
  • Pedersen v. Zielski, No. S-3694
    • United States
    • Supreme Court of Alaska (US)
    • December 6, 1991
    ...medical records necessarily precluded an estoppel. Nutty v. Jewish Hosp., 571 F.Supp. 1050, 1054 (S.D.Ill.1983); Almengor v. Dade County, 359 So.2d 892, 894 (Fla.App.1978); Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 20-21, 25 (N.D.1981); cf. Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec......
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26 cases
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...the statute of limitations does not begin to run until plaintiff is able to discover the negligence. Nardone; Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Buck v. Mouradian, 100 So.2d 70 (Fla. 3d DCA), cert. denied, 104 So.2d 592 Questions of fact pertaining to the statute of ......
  • Walls v. Armour Pharmaceutical Co., No. 89-1705-CIV-T-23B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 19, 1993
    ...Johnson v. Deluxe Tire Service, Inc., 544 So.2d 1158, 1160 (Fla. 5th DCA 1989) (automobile accident case); Almengor v. Dade County, 359 So.2d 892, 894 (Fla. 3d DCA 1978) (medical malpractice case); University of Miami v. Bogorff, 583 So.2d 1000, 1002 (Fla.1991) (medical malpractice part of ......
  • Roberts v. Casey, No. 80-335
    • United States
    • Florida District Court of Appeals
    • April 21, 1982
    ...has been put on notice of an invasion of his legal rights. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). This occurs when the plaintiff has notice of either the negligent act which causes the injury or the existence of an injury whi......
  • Pedersen v. Zielski, No. S-3694
    • United States
    • Supreme Court of Alaska (US)
    • December 6, 1991
    ...medical records necessarily precluded an estoppel. Nutty v. Jewish Hosp., 571 F.Supp. 1050, 1054 (S.D.Ill.1983); Almengor v. Dade County, 359 So.2d 892, 894 (Fla.App.1978); Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 20-21, 25 (N.D.1981); cf. Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec......
  • Request a trial to view additional results

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