Damiano v. McDaniel, 95-0068

Decision Date10 April 1996
Docket NumberNo. 95-0068,95-0068
Parties21 Fla. L. Weekly D852 Alfred DAMIANO as Personal Representative of the Estate of Francine Damiano, deceased; Alfred Damiano, individually; Anthony Damiano, Michele Damiano, and Christine Damiano, minors, individually, by and through their parent and next friend, Appellants, v. Grover McDANIEL, M.D.; Grover McDaniel, M.D., P.A.; and Community Blood Centers of South Florida, Inc., f/k/a Broward Community Blood Center, Inc., a Florida corporation, jointly and severally, Appellees.
CourtFlorida District Court of Appeals

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John T. Luzzo, Judge.

Richard A. Sherman and Rosemary B. Wilder of Richard A. Sherman, P.A., and Wilton L. Strickland of Strickland & Seidule, P.A., Fort Lauderdale, for appellants.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham, Lane & Ford, P.A., Fort Lauderdale, for appellees.

STONE, Judge.

We affirm the final order granting summary judgment in favor of Appellees on the authority of Kush v. Lloyd, 616 So.2d 415 (Fla.1992), Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987), approved, 541 So.2d 92 (Fla.1989), University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991), Dampf v. Furst, 624 So.2d 368 (Fla. 3d DCA 1993), rev. denied, 634 So.2d 623 (Fla.1994), Padgett v. Shands Teaching Hospital and Clinics, Inc. 616 So.2d 467 (Fla. 1st DCA 1993), Doe v. Shands Teaching Hospital, 614 So.2d 1170 (Fla. 1st DCA), rev. denied, 626 So.2d 204 (Fla.1993), and Whigham v. Shands Teaching Hospital and Clinics, Inc., 613 So.2d 110 (Fla. 1st DCA 1993), rev. dismissed, 634 So.2d 629 (Fla.1994).

Section 95.11(4)(b), Florida Statutes, provides, in relevant part, that a medical malpractice action "in no event shall ... be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued." 1 In the instant case, Francine Damiano, now deceased, received an HIV-infected blood transfusion in June 1986 and tested positive for HIV in April 1990. She sued the appellee/doctor alleging medical malpractice incident to ordering the transfusion.

Applying section 95.11(4)(b), as interpreted by the above cited authority, in order to preserve Appellants' cause of action, suit was required to be commenced by June 1990, regardless of when Appellants, in fact, discovered that Mrs. Damiano had AIDS. We note that Appellants assert that Mrs. Damiano did not discover that she had AIDS until August 1990 although the record reflects that she consulted with her doctor and an infectious disease specialist concerning her HIV positive test results in April and May 1990. At that time, the doctors determined that a likely source of infection was the blood transfusion. The question of the date of discovery was not addressed by the trial court and disputed issues of fact may remain as to that issue. However, because we conclude that the suit had to be filed, in any event, by June 1990, we need not address any dispute over the date of discovery. As the record on appeal indicates that a notice of intent to sue was not filed until February 25, 1992, and suit was not commenced until June 26, 1992, Appellants' cause of action was barred by the statute...

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3 cases
  • Damiano v. McDaniel
    • United States
    • Florida Supreme Court
    • March 13, 1997
    ...P.A., West Palm Beach, for amicus curiae The Academy of Florida Trial Lawyers. GRIMES, Justice. We review Damiano v. McDaniel, 670 So.2d 1198, 1199 (Fla. 4th DCA 1996), which certified to this Court the following IS THE MEDICAL MALPRACTICE STATUTE OF REPOSE UNCONSTITUTIONALLY APPLIED, AS A ......
  • Community Blood Centers of South Florida, Inc. v. Damiano
    • United States
    • Florida District Court of Appeals
    • July 30, 1997
    ...had no notice of injury prior to the expiration of the repose period. Our court affirmed this summary judgment, Damiano v. McDaniel, 670 So.2d 1198 (Fla. 4th DCA 1996), approved, 689 So.2d 1059 (Fla.1997), but certified the question of whether the statute of repose is unconstitutionally app......
  • Damiano v. McDaniel
    • United States
    • Florida Supreme Court
    • September 18, 1996

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