Ash v. Stella, No. 63347

CourtFlorida Supreme Court
Writing for the CourtPER CURIAM; BOYD, C.J., and ADKINS
Citation457 So.2d 1377
PartiesTerrence M. ASH, D.C., Petitioner, v. Nicholas A. STELLA, etc., Respondent.
Docket NumberNo. 63347
Decision Date11 October 1984

Page 1377

457 So.2d 1377
Terrence M. ASH, D.C., Petitioner,
v.
Nicholas A. STELLA, etc., Respondent.
No. 63347.
Supreme Court of Florida.
Oct. 11, 1984.

Susan J. Cole and Michael K. McLemore of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for petitioner.

Edward A. Perse of Horton, Perse & Ginsberg, and Carroll, Halberg & Meyerson, Miami, for respondent.

PER CURIAM.

We have for review a decision of a district court of appeal, Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982), which is in conflict with decisions of other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Page 1378

The issue in this case is when does the statute of limitations begin to run in wrongful death actions where the negligence complained of is medical malpractice. Respondent Nicholas Stella, as personal representative of his wife's estate, commenced this action on March 30, 1979, by filing a complaint charging petitioner Terrence M. Ash, D.C., with the wrongful death of his wife Cynthia Stella. The complaint alleged that Mrs. Stella began experiencing back and shoulder pains in 1975 and that on July 7, 1975, she came under the care and treatment of Albert Gersing, M.D. On January 7, 1977, according to the complaint, Mrs. Stella came under the care and treatment of Terrence M. Ash, D.C., who treated her improperly by failing to diagnose her condition as malignant hemangiopericytoma of the soft tissue of the right post-scapula area. The complaint further alleged that a proper diagnosis was not made until March 23, 1977, by Robert B. Hinds, M.D., and that as a result of the delay of proper diagnosis, Mrs. Stella died on January 31, 1978.

Dr. Ash filed a motion to dismiss on the ground that the statute of limitations had run since the complaint was filed more than two years after Mrs. Stella's condition was properly diagnosed. The motion was granted; Stella appealed and the district court reversed, finding that although the complaint was filed more than two years after a proper diagnosis was rendered, there was nothing in the complaint to indicate whether or not the proper diagnosis was conveyed to the patient. Stella v. Ash, 380 So.2d 488 (Fla. 3d DCA 1980). On remand, after additional discovery established that Mrs. Stella had been informed of the proper diagnosis on the day it was made, Dr. Ash filed a motion for summary judgment, again asserting that the statute of limitations had run. The trial court granted Ash's motion for summary judgment, and Stella filed a second appeal.

On appeal, the district court again reversed, holding that a wrongful death action is not limitations-barred when it is filed within two years of the death of the injured party. Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982). The district court went on to hold that even if the action were required to be brought within two years of when the incident giving rise to the action was discovered or should have been discovered, the fact that Cynthia Stella had been informed of a proper diagnosis did not conclusively establish that she knew or should have known that Dr. Ash had misdiagnosed her condition.

In support of its holding that the statute of limitations did not begin running until Cynthia Stella had died, the district court cited...

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25 practice notes
  • James v. Phoenix General Hosp., Inc., Nos. CV
    • United States
    • Supreme Court of Arizona
    • 1 Octubre 1987
    ...resulting in death, the Statute of Limitations begins to run on the date of the alleged wrongful act or omission."); Ash v. Stella, 457 So.2d 1377, 1379 (Fla.1984) ("Before that time [1975] the statute of limitations governing malpractice suits did not apply to wrongful death actions. Howev......
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • 18 Abril 1989
    ...in favor of Dr. Koch, the University, and Lederle but had vacated them, pursuant to Bogorff's motion, on the authority of Ash v. Stella, 457 So.2d 1377 (Fla.1984). The orders under review on these appeals were entered on the renewed motions for summary final judgment filed by Dr. Koch, the ......
  • Groover v. Polk Cnty. Bd. of Cnty. Comm'rs, Case No. 8:18-cv-02454-T-02TGW
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 8 Mayo 2020
    ...this section to apply to wrongful death actions in cases where the basis for the action is medical [negligence]." Ash v. Stella , 457 So. 2d 1377, 1379 (Fla. 1984). Plaintiffs’ claims are medical negligence claims and are, therefore, governed by section 95.11(4)(b). See Joseph v. Univ. Beha......
  • University of Miami v. Wilson, No. 3D04-2939.
    • United States
    • Court of Appeal of Florida (US)
    • 21 Junio 2006
    ...our supreme court has ruled that if there exists an express provision that controls, the more general is inapplicable. Ash v. Stella, 457 So.2d 1377 (Fla.1984). In Ash, a surviving husband brought a medical malpractice wrongful death action in his capacity as the personal representative of ......
  • Request a trial to view additional results
25 cases
  • James v. Phoenix General Hosp., Inc., Nos. CV
    • United States
    • Supreme Court of Arizona
    • 1 Octubre 1987
    ...resulting in death, the Statute of Limitations begins to run on the date of the alleged wrongful act or omission."); Ash v. Stella, 457 So.2d 1377, 1379 (Fla.1984) ("Before that time [1975] the statute of limitations governing malpractice suits did not apply to wrongful death actions. Howev......
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • 18 Abril 1989
    ...in favor of Dr. Koch, the University, and Lederle but had vacated them, pursuant to Bogorff's motion, on the authority of Ash v. Stella, 457 So.2d 1377 (Fla.1984). The orders under review on these appeals were entered on the renewed motions for summary final judgment filed by Dr. Koch, the ......
  • Groover v. Polk Cnty. Bd. of Cnty. Comm'rs, Case No. 8:18-cv-02454-T-02TGW
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 8 Mayo 2020
    ...this section to apply to wrongful death actions in cases where the basis for the action is medical [negligence]." Ash v. Stella , 457 So. 2d 1377, 1379 (Fla. 1984). Plaintiffs’ claims are medical negligence claims and are, therefore, governed by section 95.11(4)(b). See Joseph v. Univ. Beha......
  • University of Miami v. Wilson, No. 3D04-2939.
    • United States
    • Court of Appeal of Florida (US)
    • 21 Junio 2006
    ...our supreme court has ruled that if there exists an express provision that controls, the more general is inapplicable. Ash v. Stella, 457 So.2d 1377 (Fla.1984). In Ash, a surviving husband brought a medical malpractice wrongful death action in his capacity as the personal representative of ......
  • Request a trial to view additional results

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