Elliot v. Barrow, 87-819

• Court: Court of Appeal of Florida (US)
• Writing for the Court: THOMPSON
• Citation: 13 Fla. L. Weekly 1330,526 So.2d 989
• Parties: 13 Fla. L. Weekly 1330 Patricia S. ELLIOT as Personal Representative of the Estate of Francis T. Elliot, Jr., deceased, for the benefit of Patricia S. Elliot and the Estate of Francis T. Elliot, Jr., Appellant, v. Mark V. BARROW, M.D., Robert Thoburn, M.D., et al., Appellees.
• Docket Number: No. 87-819,87-819
• Decision Date: 03 June 1988

Page 989

526 So.2d 989 13 Fla. L. Weekly 1330 Patricia S. ELLIOT as Personal Representative of the Estate of Francis T. Elliot, Jr., deceased, for the benefit of Patricia S. Elliot and the Estate of Francis T. Elliot, Jr., Appellant,
v.
Mark V. BARROW, M.D., Robert Thoburn, M.D., et al., Appellees. No. 87-819. District Court of Appeal of Florida,
First District. June 3, 1988.
Rehearing Denied July 7, 1988.

Alan S. Wilhite, Gainesville and Richard G. Collins, Ft. Lauderdale, for appellant.

Page 990

Richard T. Jones of Jones & Carter, P.A., Gainesville, for appellees.

THOMPSON, Judge.

Patricia Elliot, the widow of Francis T. Elliot, Jr. and the plaintiff below, appeals a final order dismissing with prejudice her medical malpractice action against appellee H.C.A. Health Services of Florida, Inc. d/b/a North Florida Regional Hospital. We reverse.

On July 2, 1984 the decedent, Francis T. Elliot, Jr., fainted at home and was taken by ambulance to North Florida Regional Hospital. While he was left alone in the x-ray department on a table he fainted again, fell off the table, and was injured. He died approximately three months later on October 7, 1984, allegedly as a result of these injuries.

In compliance with § 768.57, Fla.Stat. (1986) appellant provided notice of her intent to initiate litigation to all prospective defendants on May 30, 1986. Appellant filed her initial wrongful death complaint on November 3, 1986. Named as defendants were the decedent's two treating physicians, their professional association, the appellee hospital and the Florida Patient's Compensation Fund. Appellant filed an amended complaint on April 13, 1987. The amended complaint's third count alleged that the hospital and its employees were negligent in leaving decedent unattended and unsecured, and that they willfully misled decedent and his family as to the nature of his condition so as to convince them no health care provider was responsible for his injuries and ultimate death. The hospital filed a motion to dismiss arguing that the 2 year statute of limitations of § 95.11(4)(b), Fla.Stat. barred plaintiff's claim. Specifically the hospital argued that decedent's fall on July 2, 1984, or, at the latest, his death on October 7, 1984 was the incident triggering the statute which would therefore have run July 2, 1986 or October 7, 1986, at the latest, thereby barring appellant's November 3, 1986 action. The hospital also argued that for a variety of reasons the 90 day tolling period afforded by § 768.57, Fla.Stat. was either inapplicable to appellant's action or otherwise did not operate to her benefit to overcome the purported untimeliness of her complaint. Without indicating which argument it found convincing, the court granted the hospital's motion and dismissed appellant'scomplaint with prejudice as to the hospital. This dismissal was improper.

Pursuant to § 768.57, Fla.Stat. (1986), any medical malpractice claimant, prior to filing suit, must serve...