Barron v. Shapiro

• Decision Date: 14 June 1990
• Docket Number: No. 74144,74144
• Citation: 565 So.2d 1319
• Parties: 15 Fla. L. Weekly S340 James BARRON, M.D., et al., Petitioners, v. Josephine SHAPIRO, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 1319

565 So.2d 1319

15 Fla. L. Weekly S340

James BARRON, M.D., et al., Petitioners, v.Josephine SHAPIRO, etc., et al., Respondents.

No. 74144.

Supreme Court of Florida.

June 14, 1990.

Rehearing Denied Sept. 12, 1990.

Nancy P. Maxwell of Metzger, Sonneborn & Rutter, P.A., West Palm Beach, for petitioners.

Philip M. Burlington of Edna L. Caruso, P.A., West Palm Beach, and Kevin L. O'Brien of Thompson and O'Brien, Fort Lauderdale, for respondents.

Robert M. Klein and Philip D. Parris of Stephens, Lynn, Klein & McNicholas, P.A., Miami, amicus curiae for Florida Medical Ass'n and Florida Hosp. Ass'n.

Jack W. Shaw, Jr. of Mathews, Osborne, McNatt & Cobb, Jacksonville, amicus curiae for Florida Defense Lawyers Ass'n.

GRIMES, Justice.

We review Shapiro v. Barron, 538 So.2d 1319(Fla. 4th DCA1989), because of its conflict with Nardone v. Reynolds, 333 So.2d 25(Fla.1976).Our jurisdiction is based on article V, section 3(b)(3), of the Florida Constitution.

On August 17, 1979, Dr. James Barron operated upon Lee Shapiro for removal of malignant polyps in the colon.Following his surgery, Mr. Shapiro developed an infection which progressed to the point that he became in critical condition.At Mrs. Shapiro's request, her husband's nephew, Dr. Emil Gutman, traveled to Florida.Dr. Gutman reviewed the medical records and suggested that a hematologist be called in because Mr. Shapiro was reacting poorly to the blood transfusions.Dr. Barron transferred Mr. Shapiro into the hands of other physicians on October 7, 1979.The infection was finally brought under control by heavy doses of antibiotics.However, Mr. Shapiro's eyesight began to deteriorate in October of 1979, and by December 31, 1979, he was diagnosed as blind.He was discharged from the hospital in February of 1980.

Thereafter, Dr. Gutman contacted Dr. Kunin for his advice concerning Mr. Shapiro's condition.In January of 1982, Dr. Kunin expressed the opinion that Mr. Shapiro's blindness was caused by Dr. Barron's failure to administer antibiotics before the operation.Mr. and Mrs. Shapiro filed a malpractice action against Dr. Barron and Florida Patient's Compensation Fund on January 29, 1982.¹

The trial court entered summary judgment for the defendants on the ground that the suit was barred by the two-year statute of limitations governing medical malpractice.In addressing the limitations question, the district court of appeal observed:

While the complications arising from Mr. Shapiro's surgery were obvious to all, at what time the Shapiros had or should have had knowledge of the cause of such complications becomes the focal point of this opinion, since knowledge of physical injury alone, without the knowledge that it resulted from a negligent act, does not trigger the statute of limitations.Moore v. Morris, 475 So.2d 666(Fla.1985).

538 So.2d at 1319.The court reversed the summary judgment, holding that a genuine issue of material fact existed with respect to when the Shapiros knew or should have known that Mr. Shapiro's complications were caused by Dr. Barron's failure to use antibiotics.

In Nardone, a thirteen-year-old boy was admitted to the hospital in early 1965 and underwent several operations and other procedures.When he was discharged in July of 1965, he was totally blind and comatose and had suffered irreversible brain damage.A malpractice action was filed in federal court in May of 1971.While the applicable statute of limitations at that time was four years, the parents asserted that they did not become aware of the negligence of the physicians and hospitals until a point in time which was well within four years of the institution of the suit.

The district judge dismissed the action on the ground that the suit had not been filed within the period of the statute of limitations.The Fifth Circuit Court of Appeals certified several questions to this Court.In the course of answering these questions, we stated:

Appellants request that this Court adopt the view that the statute of limitations did not commence to run until they became aware of the negligence of the physicians and hospital.Previously, this Court has held that the statute of limitations in a malpractice suit commences either when the plaintiff has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act.City of Miami v. Brooks, 70 So.2d 306(Fla.1954).Sub judice, the plaintiffs were on actual notice of the decerebrate state of their son, that he had suffered irreversible brain damage, and in accordance with Brooks, supra, the statute of limitations began to run when the injury was known.

333 So.2d at 32.

This Court revisited the issue in Moore v. Morris, 475 So.2d 666(Fla.1985).In that case, a caesarean section was performed when complications occurred during the delivery of a baby.When the child was born, it became necessary to cut open her chest and to insert a tube to assist her in breathing.The father was advised that the baby might not live due to oxygen deprivation caused by swallowing something while in the womb.However, the baby appeared to make a complete recovery, and the physicians told the parents that the child was fine.It was not until the child was three years old that a physician was able to scientifically diagnose that she suffered from brain damage.A malpractice action was filed approximately four years and nine months after the child's birth.The applicable statute of limitations was four years.

In resolving the case, this Court reaffirmed the principle of Nardone that the statute begins to run when the plaintiffs knew or should have known that either injury or negligence had occurred.However, the defendants' summary judgment was reversed because there were genuine issues of material fact with respect to whether the parents were on notice that an injury had occurred more than four years prior to filing the medical malpractice action.The court pointed to the physicians' assurances of the baby's good health and the mother's understanding at the time of the baby's discharge that she had suffered no damage.

Applying the principle of Nardone to the facts of this case, it is apparent that the Shapiros were on notice of Mr. Shapiro's injury by at least December 31, 1979.As Mrs. Shapiro put it, her husband went in for an operation on his colon and came out blind.This is not a case where the disastrous consequences of the surgery did not become apparent until less than two years before the suit was filed.Moreover, Mrs. Shapiro had full access to the medical records, and there was no fraudulent concealment.The fact that a doctor other than Dr. Barron suggested to Mrs. Shapiro that the tubes in Mr. Shapiro's body may have acted as a host for the infection could not serve to toll the statute.Mrs. Shapiro's contention that the statute of limitations did not commence to run until she had reason to know that injury was negligently inflicted flies directly in the face of both Nardone and Moore.The district court of appeal misinterpreted Moore when it said that knowledge of physical injury alone, without knowledge that it resulted from a negligent act, does not trigger the statute of limitations.

Recognizing the implications of Nardone, the major thrust of Mrs. Shapiro's argument in this Court is that the case no longer applies because of later amendments to the applicable statute of limitations.The applicable statute of limitations in Nardone was section 95.11(4), Florida Statutes(1965), which provided:

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.

Thereafter, the legislature created a specific statute of limitations for medical malpractice, and that statute has been amended several times.The statute applicable to the instant case was section 95.11(4)(b), Florida Statutes(1979), ² which reads in pertinent part:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence....

While the current statute does not say that the cause of action occurs at the time of the injury, neither did the statute under consideration in Nardone.In fact, it could be argued that by using the word "incident"the legislature envisioned that there would be some factual circumstances in which the statute would begin to run before either the negligence or the injury became known.In any event, we cannot accept Mrs. Shapiro's contention that the word "incident" means the point in time at which the negligence should have been discovered.We believe that the reasoning of Nardone continues to be applicable to the current statute.Thus, the limitation period commences when the plaintiff should have known either of the injury or the negligent act.

Accordingly, we quash the opinion below and remand with directions that the summary judgment be reinstated.

It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD and KOGAN, JJ., concur.

SHAW, J., dissents with an opinion, in which BARKETT, J., concurs.

SHAW, Justice, dissenting.

The statute of limitations for medical malpractice actions states that a claim must be brought "within 2 years from the time the incident giving rise to the action ... is discovered, or should have been discovered with the exercise of due diligence."§ 95.11(4)(b),Fla.Stat.(1979).The majority interprets the term "incident" to mean either the negligent act or the resulting injury.I disagree.In my opinion, the legislature intended the term to mean only the negligent act.As I see it, medical malpractice situations...