Durden v. American Hospital Supply Corp., 79-29
Decision Date | 18 September 1979 |
Docket Number | No. 79-29,79-29 |
Citation | 375 So.2d 1096 |
Parties | Harvey DURDEN and Patricia Durden, his wife, Appellants, v. AMERICAN HOSPITAL SUPPLY CORPORATION, Appellee. |
Court | Florida District Court of Appeals |
Chonin & Segor, Miami, for appellants.
Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and T. E. Scott, Miami, for appellee.
Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
Plaintiff, Harvey Durden, appeals an order dismissing with prejudice his complaint for negligence as being barred by the applicable statute of limitations.
American Hospital Supply Corporation owns and operates the Biological Laboratory, a blood donor center located in Miami, Florida. On January 14, 1974 and several occasions previous thereto, Harvey Durden sold his blood to Biological. By letter dated January 16, 1974 Biological notified him that a hepatitis antigen was present in his blood. Durden contracted infectious hepatitis and on December 23, 1977 filed a complaint and subsequently a third amended complaint against appellee, American Hospital Supply, for negligence in the extraction of his blood. He alleged that American was negligent in the following respects: use of a dirty needle, failure to use a clean or sterilized needle and failure to properly inspect the needle for cleanliness prior to use. American moved to dismiss the third amended complaint as being barred by the two-year statute of limitations for medical malpractice. After a hearing the trial court determined as a matter of law that the case was barred by the two-year statute of limitations and entered the herein appealed order dismissing the complaint with prejudice.
The issue presented for our determination is whether the two-year statute of limitations for medical malpractice, Section 95.11(4)(b), is applicable or the four-year limitation for general negligence actions pursuant to Section 95.11(3)(a). 1
American contends that the language in Section 95.11(4)(b) is broad and all-encompassing and being a health care provider as defined in Section 768.50(2)(b), Florida Statutes (1977), 2 it falls within the purview of this statute set out below:
We cannot agree.
A controlling principle of law with respect to statutory construction is that the words contained in a statute must be construed in their plain and ordinary sense. Reino v. State, 352 So.2d 853 (Fla.1977). This principle was succinctly stated in Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960):
Construing Section 95.11(4)(b) in its plain and ordinary sense, it is apparent that more than just the fact that a party defendant is a health care provider is required to bring a cause of action within this two-year statute of limitations. In addition, the claim for damages must arise as a result of medical, dental or surgical diagnosis, treatment or...
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