Burbank v. Kero, 5D00-2781.
| Decision Date | 19 April 2002 |
| Docket Number | No. 5D00-2781.,5D00-2781. |
| Citation | 813 So.2d 292 |
| Parties | Kalani K. BURBANK, Appellant, v. Niloufer KERO, M.D., etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
George A. Vaka, of Vaka, Larson & Johnson, P.L., Tampa, and Gary W. Roberts, of Gary Roberts & Associates, P.A., West Palm Beach, for Appellant.
Shelley H. Leinicke, of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Ft. Lauderdale, for Appellee, Luciano Sztulman, M.D.
No Appearance for Niloufer Kero, M.D., Niloufer Kero, M.D., P.A., F.A.C.O.G., etc.
Appellant, Kalani K. Burbank ["Burbank"], appeals a summary final judgment in a medical malpractice case based on the expiration of the statute of limitations as to her claim against Luciano Sztulman, M.D. ["Dr. Sztulman"]. We conclude that the statute of limitations had not expired as of the date suit was filed against Dr. Sztulman, and, accordingly, we reverse.
Here is the basic chronology:
If the statute of limitations began to run on November 19, 1994, the claim would have been barred had it been filed after November 20, 1996 in the absence of any extension or tolling. On September 23, 1996, the plaintiff petitioned the Clerk of Circuit Court for the additional ninety-day extension. As noted by the court in Hankey v. Yarian, 755 So.2d 93 (Fla.2000), the ninety-day period is tacked onto the end of the statute of limitations. With the ninety-day extension authorized by Florida Statute section 766.104(2), the statute of limitations, in the absence of the other tolling provisions, would have run on February 18, 1997. The notice of intent to initiate litigation was sent to Dr. Kero, Suncoast Obstetrics and Gynecology, P.A. and Oak Hill on January 12, 1997. Those notices were received on January 13, 1997. The statute of limitations was then tolled ninety days from the date that the defendant received the notice of intent. See Boyd v. Becker, 627 So.2d 481, 483-484 (Fla.1993)
. Applying the holding of Hankey and the plain language of section 766.106(4), Florida Statutes, the statute of limitations clock stopped running as to "all potential defendants" for ninety days, or until April 13, 1997.
During the ninety-day period in which the statute of limitations was tolled, Burbank's trial counsel, for the first time, received the records which indicated that Dr. Sztulman had in fact been an attending physician. Notice of intent to initiate litigation was mailed to Dr. Sztulman on March 31, 1997 and received by him on April 7, 1997. At that time, there was still time remaining on the statute of limitations. Because of the tolling effect of the notice of intent, the statute of limitations, as to Sztulman, did not expire until July 6, 1997. On June 9, 1997, Dr. Sztulman's liability insurer denied the claim. Suit was filed against Sztulman on June 30, 1997, before the action was time barred. Thus, the summary final judgment was erroneous as a matter of law.
REVERSED and REMANDED.
I concur in the majority opinion. I also believe that a factual dispute concerning the defendant physicians' refusal to produce medical records showing Dr. Sztulman's involvement with the malpractice precludes summary judgment. The reason document production is required on a timely basis is to allow the plaintiff to perform the required presuit investigation. Medina v. Public Health Trust, 744 So.2d 1142, 1144 (Fla. 3d DCA 1999)(Cope, J., dissenting.) What makes this case different from other cases that have considered the legal effect of a defendant's failure to comply with his or her duty to turn over the medical records is that the missing critical fact in this case is not whether there was malpractice but who was the plaintiffs doctor. There is, at least, a factual dispute about whether the plaintiff knew or should have known that Dr. Sztulman was one of her treating physicians. Plaintiff asserts that his involvement was not known until the records were finally received.
It does appear that Sztulman was still employed by Dr. Kero and Suncoast when they received Burbank's request for medical records, with which they did not comply. If Dr. Sztulman knew the records had been requested and had not been provided, as required by section 766.204, Florida Statutes, equity should estop him from relying on the statutory scheme to avoid answering for his malpractice.
In a normal professional malpractice case, Burbank could simply have filed suit on the day she hired counsel against Oak Hill, Dr. Kero and Suncoast, the individuals known to be involved in her care. Then she could conduct formal discovery under the rules of civil procedure to substantiate her claim and discover whatever facts and additional actors would be revealed in the records. This discovery process would require responses of Dr. Kero, Oak Hill and Suncoast under oath and would provide her with judicial powers of enforcement for their failure to comply with the discovery rules. These would certainly include sanctions for failure to produce medical records, such as the striking of any defenses, including the statute of limitations.
Burbank, on the other hand, was prevented from accessing the court within the two-year statute of limitations by the multiple "conditions precedent" set up by the statute.1 Her counsel was obliged to file...
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...and (4) have determined that the tolling applies to all defendants and that multiple tolling periods may exist. In Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002) the Fifth District concluded that the two-year statute of limitations for Burbank's claim would have expired on November 19, ......
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...12, 2003—The trial court denies CORA's motion for summary judgment. The instant petition for certiorari followed. Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002), provides guidance for the calculation of time periods to determine whether Steinbronn served his notice of intent to initiate......