Bogorff By and Through Bogorff v. Koch

• Decision Date: 18 April 1989
• Docket Number: 86-2911,Nos. 86-2550,s. 86-2550
• Citation: 547 So.2d 1223,14 Fla. L. Weekly 968
• Parties: 14 Fla. L. Weekly 968 Adam BOGORFF, a minor, By and Through his father and next friend, Robert BOGORFF, and Robert Bogorff, individually, Appellants, v. Kjell KOCH, M.D., the University of Miami, and Lederle Laboratories, Appellees.
• Court: Florida District Court of Appeals

Page 1223

547 So.2d 1223

14 Fla. L. Weekly 968

Adam BOGORFF, a minor, By and Through his father and next friend, Robert BOGORFF, and Robert Bogorff, individually, Appellants, v. Kjell KOCH, M.D., the University of Miami, and Lederle Laboratories, Appellees.

Nos. 86-2550, 86-2911.

District Court of Appeal of Florida Third District.

April 18, 1989.

Rehearing Denied Sept. 14, 1989.

Krupnick, Campbell, Malone & Rosselli, P.A., Fort Lauderdale, Klein & Beranek, P.A., and Julie Pressly and John Beranek, West Palm Beach, for appellants.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelly H. Leinicke, Fort Lauderdale, for appellee Kjell Koch, M.D.

Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., and A. Blackwell Stieglitz, Miami, for appellee University of Miami.

Fleming, O'Bryan & Fleming and Paul R. Regensdorf, Fort Lauderdale, for appellee Lederle Laboratories.

Before BASKIN, FERGUSON and JORGENSON, JJ.

BASKIN, Judge.

This appeal follows the entry of summary final judgments in favor of Dr. Kjell Koch, the University of Miami, and Lederle Laboratories following a determination that the statute of limitations precludes appellants from pursuing their claims. We reverse.

In April 1970, Adam Bogorff, three and a half years old, was diagnosed as having leukemia. In June 1970, the Bogorff family moved to Florida. On the recommendation of his treating physicians, Adam became the patient of Dr. Kjell Koch, a member of the medical staff at the University of Miami. At that time, Adam's leukemia was in remission. Dr. Koch treated Adam with doses of orally administered methotrexate, oncovin, and prednisone. Methotrexate is a drug manufactured by Lederle Laboratories. In June 1971, Dr. Koch supplemented Adam's treatment with three doses of methotrexate administered intrathecally ¹ (in the spine), in conjunction with cranial and spinal radiation. According to the Bogorffs, Lederle indicated (in the 1971 Physician's Desk Reference) that intrathecal administration of methotrexate was appropriate, although the Federal Drug Administration had not approved such use. After he received the first three injections, Adam experienced as side effects only a slight headache and loss of appetite.

In January 1972, Dr. Koch administered another intrathecal injection of methotrexate as a prophylactic measure. Approximately one month later, in February 1972, the Bogorffs noticed that Adam was lethargic and was losing coordination and mental function. He also suffered from headaches, nausea, and vomiting. In April 1972, Adam began experiencing convulsions and became comatose. Although he recovered from the coma in July 1972, Adam was unable to walk or talk. When the Bogorffs consulted Dr. Koch about these alterations in Adam's condition, Dr. Koch informed them that the changes were the result of either the spread of the leukemia to the brain or a viral infection. In an effort to stop the convulsions, the Bogorffs took Adam to a neurosurgeon, who advised them that Adam's condition was caused by the spread of leukemia to the brain.

In the summer of 1972, Mr. Bogorff came across an article in a medical journal ² linking intrathecal methotrexate treatment of leukemia to encephalopathy (brain damage). Mr. Bogorff showed the article to Dr. Koch, who read it in his presence, threw it in the trash can, and informed Mr. Bogorff that methotrexate treatment had no relationship to Adam's condition. ³ Adam remained Dr. Koch's patient for several more years without experiencing significant improvement in his medical condition.

When the Bogorffs moved to Florida, Dr. Paul Winick became Adam's pediatrician. In January 1973, Dr. Winick wrote to Dr. Koch, stating that it was difficult to ascertain whether Adam's condition resulted from the methotrexate injections. From 1973 to 1979, the Bogorffs, hoping to improve Adam's condition, took him to a number of other physicians. A radiologist in charge of Adam's radiation therapy sent a letter to Dr. Winick in May 1973, confirming Dr. Winick's belief that some remote connection might exist between the state of Adam's health and the intrathecal methotrexate treatment. In May 1975, Adam was examined by a neurologist who sent copies of his evaluative report to both Dr. Koch and Dr. Winick. In the report, the neurologist agreed that Adam seemed to have some kind of encephalopathy related either to his leukemia, radiation, or methotrexate treatment.

In July 1977, Mrs. Bogorff took Adam to St. Jude's Hospital in Memphis, Tennessee, for a nutritional evaluation because he was not growing at a rate normal for his age. After examining Adam, Dr. Paul Zee, the physician in charge of nutrition at St. Jude's, wrote to Mrs. Bogorff commending her on her excellent care of Adam and informing her that the details of his examination had been sent to Dr. Winick. Dr. Zee's letter to Mrs. Bogorff gave no indication that he had found any cause for Adam's condition other than that postulated by Dr. Koch; however, in a report sent to Dr. Winick at the same time, Dr. Zee stated that his diagnosis of Adam's condition was "encephalopathy with reversible anatomical changes possibly secondary to radiation and intrathecal methotrexate." Dr. Winick concurred with this diagnosis. By 1979, Adam was described as "a total quadriplegic, functioning at an infantile level, with diffuse brain damage, no speech, and little chance of improvement."

With the exception of Dr. Zee's letter to Mrs. Bogorff, the physicians' letters or reports were not shown to or discussed with the Bogorffs. The Bogorffs could not recall any of Adams' treating physicians ever informing them of a possible connection between methotrexate treatment and Adam's condition. Although these reports were placed in Adam's medical files kept by Dr. Koch and Dr. Winick, the Bogorffs maintain they knew nothing of the letters and reports until February 1982; they allege that when they asked Jackson Memorial Hospital for Adam's hospital records, ⁴ which would have included Dr. Koch's medical file, they were told there were no records.

In October 1979, the Bogorffs began to consider the possibility that Adam's medical care may have been negligent. They contacted a law firm to investigate, but were advised that no cause of action existed.

The Bogorffs made no further inquiries until February 1982. At that time, they engaged an attorney to assist them in applying to the Social Security Administration for financial aid for Adam's care. The Bogorffs requested Adam's medical records from Dr. Winick, and upon examining them, discovered Dr. Zee's letter. In December 1982, the Bogorffs filed a multicount complaint against Dr. Koch and the University of Miami, seeking damages for their medical malpractice, and against Lederle Laboratories for damages for products liability arising from the manufacture and dissemination of methotrexate. In response to defense motions raising the bar of statutes of limitations, the trial court entered, vacated, and in 1986, reentered summary judgments in favor of all three defendants.

The Bogorffs contend that their claims were not barred by the statute of limitations. Resolution of the limitations issue depends on when the Bogorffs knew, or through the exercise of reasonable diligence, should have known of the alleged negligence or of the ensuing injury. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980). Substantive questions pertaining to the merits of the asserted claims must await determination of the limitations question.

Section 95.11(4), Florida Statutes (1971) (amended 1974, 1975), governs the limitations question before us. That section prescribes a four-year limitations period with no statute of repose for any actions not specifically provided for in Chapter 95. ⁵ See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.1987). In malpractice lawsuits governed by this section, timeliness of filing is measured from the date a plaintiff has notice of the negligent act giving rise to the cause of action, or notice of the physical injury resulting from the negligent act. Nardone; City of Miami v. Brooks, 70 So.2d 306 (Fla.1954).

A plaintiff who lacks actual knowledge is deemed to have constructive notice of a negligent act disclosed by the contents of obtainable hospital and medical records. Nardone, 333 So.2d at 34. But see Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979) (knowledge of medical records not imputed to patient when hospital and medical records contain technical terms that an ordinary lay person could not be expected to understand), cert. denied, 383 So.2d 1189 (Fla.1980). However, when defendants fraudulently conceal or misrepresent their negligence, 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 (Fla.1958).

Questions of fact pertaining to the statute of limitations exist in the record before us: When did the Bogorffs know that Dr. Koch's conduct was possibly negligent? Did Dr. Koch or the University of Miami conceal information the Bogorffs needed to recognize the existence of a claim? The record discloses that the variation in Adam's condition was not ascertainable immediately upon administration of the intrathecal methotrexate; the deviation did not become apparent until approximately three months after the treatments ended. Thus, no immediate change of condition put the Bogorffs on notice of the connection between the condition and the treatment. See Humber v. Ross, 509 So.2d 356 (Fla. 4th DCA), review denied, 518 So.2d 1275 (Fla.1987). In fact, when the Bogorffs asked Dr. Koch specifically about the cause of Adam's condition, h...