Florida Patient's Compensation Fund v. Tillman, s. 82-1197

• Court: Court of Appeal of Florida (US)
• Citation: 453 So.2d 1376
• Docket Number: 82-1370,82-1433,82-1199,82-1527 and 82-1823,Nos. 82-1197,s. 82-1197
• Parties: FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. Joseph TILLMAN, Howmedica, Inc., et al., Appellees. ST. MARY'S HOSPITAL, Appellant, v. Joseph TILLMAN, Bruce Waxman, M.D., et al., Appellees. (Two Cases) Joseph TILLMAN, Appellant, v. ST. MARY'S HOSPITAL, etc., et al., Appellees. Bruce WAXMAN, M.D., Appellant, v. Joseph TILLMAN, Appellee. Bruce WAXMAN, M.D., Appellant, v. Joseph TILLMAN, et al., Appellees.
• Decision Date: 13 July 1984

Page 1376

453 So.2d 1376 FLORIDA PATIENT'S COMPENSATION FUND, Appellant,
v.
Joseph TILLMAN, Howmedica, Inc., et al., Appellees.
ST. MARY'S HOSPITAL, Appellant,
v.
Joseph TILLMAN, Bruce Waxman, M.D., et al., Appellees. (Two Cases)
Joseph TILLMAN, Appellant,
v.
ST. MARY'S HOSPITAL, etc., et al., Appellees.
Bruce WAXMAN, M.D., Appellant,
v.
Joseph TILLMAN, Appellee.
Bruce WAXMAN, M.D., Appellant,
v.
Joseph TILLMAN, et al., Appellees. Nos. 82-1197, 82-1199, 82-1370, 82-1433, 82-1527 and 82-1823. District Court of Appeal of Florida,
Fourth District. July 13, 1984.
Rehearings Denied Sept. 10, 1984.

Page 1377

Perkins & Collins, Tallahassee, for Florida Patient's Compensation fund.

Page 1378

David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for St. Mary's Hospital.

Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Kocha & Houston, P.A., West Palm Beach, for Joseph Tillman.

Robert M. Klein and Debra Levy Neimark of Stephens, Lynn, Chernay & Klein, P.A., Miami, for Bruce Waxman, M.D.

HERSEY, Judge.

These consolidated appeals devolve from a medical malpractice action.

Joseph Tillman developed a knee problem which required the surgical implantation of a two-element prosthesis manufactured by Howmedica, Inc. The surgery was performed by Dr. Bruce Waxman at St. Mary's Hospital on April 12, 1978. The prosthetic device obtained by St. Mary's Hospital from another hospital consisted of a tibia component and a fibula component. Each of these components is manufactured in two sizes. The prosthesis inserted in Tillman's knee consisted of mismatched components. Shortly after the surgical procedure Dr. Waxman advised Tillman that mismatched elements had been implanted in the knee. Some difficulty with the knee was encountered by Tillman almost immediately, and ultimately another surgeon performed corrective surgery which, because of deterioration of bone structure, required that the knee be fused.

On February 29, 1980, plaintiff Tillman filed his initial complaint naming St. Mary's Hospital and Howmedica, Inc., as defendants. On December 2, 1980, Dr. Waxman was added as a defendant. On July 9, 1981, Florida Patient's Compensation Fund was added as a defendant. Subsequently, Waxman and the Fund filed motions for summary judgment based upon the statute of limitations. Both motions were denied and the case proceeded to trial. During trial Dr. Waxman made a motion for directed verdict based upon the statute of limitations. The motion was denied. St. Mary's motion for directed verdict, based on the argument that there was no evidence on the hospital's standard of care or its negligence, was likewise denied. Also during the trial Dr. Waxman withdrew his affirmative defense of comparative negligence.

At the conclusion of the trial the jury found Tillman 12% negligent, St. Mary's Hospital 8% negligent, and Dr. Waxman 80% negligent. The jury found the total amount of damages to be $150,000. The trial court entered judgment on May 7, 1983, awarding Tillman $132,000 after reducing the damages by 12%, representing Tillman's comparative negligence. The final judgment is the subject of several of the appeals prosecuted by the parties--Tillman, Dr. Waxman, St. Mary's Hospital and Florida Patient's Compensation Fund. Thereafter, the trial court awarded attorney's fees to Tillman and that order, dated July 30, 1982, is also appealed by Dr. Waxman.

APPEAL OF DR. WAXMAN

Waxman relies upon the medical malpractice statute of limitations in urging that his motions for summary judgment and directed verdict were erroneously denied. The applicable statute, Section 95.11(4)(b), Florida Statutes, as amended in 1975 (thus rendering cases under the former version of the statute relied upon by Waxman of doubtful value as precedent) provides:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the

Page 1379

discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

Discovery of the "incident giving rise to the cause of action" is the point when the statute begins to run. In Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981), the court equated "incident" with the "now-alleged surgical malpractice." The term "incident," however, could not refer solely to the particular medical procedure since that would obviously be "discovered" at the time it was performed, rendering nugatory the additional two year period permitted by the statute for discovering the incident. Thus, the term must encompass (1) a medical procedure; (2) tortiously performed (3) which injures (damages) the patient. The question, then, is when did Tillman discover the "incident." The testimony presented below was conflicting.

After Dr. Waxman learned about the mismatched knee components he called Howmedica. Waxman testified that an engineer for Howmedica said "that he thought it would work out fine and he thought there was a slight impingement on the tibial spines, but that this would be resolved by cold flow." In support of Dr. Waxman's testimony, Dr. Diaz (who assisted with the operation) testified that after Waxman spoke with Howmedica, "[h]e was assured that it should work very well and that if any problem occurred, that it would probably be what we call cold flow.... He was advised that it should do quite well." This state of mind of Waxman, that no harm had been done, bears out Tillman's version of subsequent events. According to Tillman, within a few days after the operation Waxman told him that he "thought [he] had implanted the wrong or mismatched sizes" but that he "thought that it would work but [he] wasn't sure." On each of the subsequent office visits, Waxman "told him [Tillman] he was improving ...."

Tillman admitted that he never improved after the operation, but when he told Waxman, Waxman allegedly "didn't pay any attention. He acted like he wasn't paying a bit of attention ...." Tillman testified that he learned for the first time that his leg needed another operation when x-rays were taken at Dr. Ennis' office in January or February of 1979. Although Tillman had last seen Dr. Waxman in January of 1979, Waxman never told Tillman he would need another operation.

In addition to the very real possibility that Tillman was never in a position to recognize that an incident had occurred, there exists another factual determination which affects our consideration. If Tillman knew of the mismatched components shortly after the operation, the statute would begin to run only if the subsequent damage was caused by the mismatched components. Although the evidence would support a finding to that effect, there was evidence of other possible causes which were never brought to Tillman's attention.

Dr. Petty performed the corrective operation on Tillman. When Petty opened the knee, he found the prosthesis was "quite unstable." Petty then tried to replace the prothesis with a larger one but was "unable to get good bone fixation and good stability." He decided to fuse the knee.

When asked for his opinion regarding the instability of the right knee replacement, Petty responded as follows:

I think there are two or three possibilities. Possibility Number 1 would be for the, at the time of the total knee arthroplasty either excessive bone was removed, or too small a prosthesis was put in place, or a combination of those two, and those two are very closely related, and it is difficult to say either/or.

....

Another possibility is that the patient had such sever [sic] instability prior to

...