Buck v. Mouradian, 57-257

• Decision Date: 21 January 1958
• Docket Number: No. 57-257,57-257
• Parties: Sally Sabena BUCK, joined by her husband, Cameron Buck, Appellants, v. A. H. MOURADIAN, Appellee.
• Court: Florida District Court of Appeals

Page 70

100 So.2d 70

Sally Sabena BUCK, joined by her husband, Cameron Buck, Appellants, v. A. H. MOURADIAN, Appellee.

No. 57-257.

District Court of Appeal of Florida, Third District.

Jan. 21, 1958.

George L. Knight and Vincent J. Zepp, Miami, for appellants.

Carey & Papy, Miami, for appellee.

HORTON, Judge.

The appellant, plaintiff in the court below, seeks the reversal of a final judgment entered consequent upon the granting of the appellee-defendant's motion for summary judgment. The suit was instituted in the lower court by the appellant on December 26, 1956, charging the appellee, a physician, with malpractice in administering a series of x-ray treatments, causing injuries to the appellant. Specifically, it was charged that during the year 1951, the appellant engaged the appellee to treat her and pursuant to this agreement, she submitted herself for examination and treatment by the appellee, who thereafter carelessly and negligently administered a series of x-ray treatments which resulted in the appellant's receiving latent burns and injuries to the internal organs of her abdomen and other parts of her body. That subsequent to these x-ray treatments, the appellee continued to treat the appellant but fraudulently failed to advise her that the symptoms from which she was suffering were occasioned by x-ray burns resulting from appellee's carelessness and negligence.

To the complaint, the appellee filed answer which, among other defenses, raised the affirmative defense that the appellant's claim was barred by the statute of limitations, specifically alleging in said defense that the appellant had not been treated or examined by the appellee since November 30, 1951. Interrogatories were propounded by each party to the other, and request for admissions was made upon the appellant by the appellee, all of which showed that as a result of a series of x-ray treatments in 1951, the appellant experienced some skin burns in and about her abdomen and that shortly thereafter there appeared a blushing or erythema reaction. The appellant admits that she experienced a skin condition in the general area in which she received the x-ray treatments and that she discussed this condition with the appellee, who advised her that it was the result of the x-ray treatments and that he did not know why her skin had burned. In 1955, appellant learned through diagnosis of other doctors the extent of her injuries occasioned by the x-ray burns in 1951. By the entry of the summary judgment, the lower court concluded that the statute of limitations barred recovery by the appellant. F.S.A. § 95.11(5).

The gist of the appellant's action is the alleged fraudulent concealment by the appellee of his negligent treatment of appellant in 1951 which resulted in x-ray burns. Admittedly, without such allegations or evidence to support the same, the appellant would have been barred from recovery by the statute of limitations. She therefore seeks to avoid the effects of the statute by pleading facts which would toll the running of the statute.

The general rule is to the effect that when there has been notice of the invasion of a legal right or a person has been put on notice of his right to a cause of action, the statute of limitations begins to run. However, in a tort action based upon malpractice, the application of the general rule becomes difficult where the injured person is prevented from knowing of his injury due to the concealment of the fact of his injury by the treating physician. In such cases, there is a well-recognized exception which tolls the running of the statute when it can be shown that fraud has...