Florida Patient's Compensation Fund v. Sitomer
| Decision Date | 10 February 1988 |
| Docket Number | Nos. 4-86-0215,4-86-0844,4-86-0285 and 4-86-0967,s. 4-86-0215 |
| Parties | 13 Fla. L. Weekly 391 FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. Harriet R. SITOMER, Robert B. Smith, M.D., et al., Appellees. Robert B. SMITH, M.D., Appellant, v. Harriet R. SITOMER, et al., Appellees. Robert B. SMITH, M.D., and Robert B. Smith, M.D., P.A., Appellants, v. Harriet R. SITOMER, Appellee. |
| Court | Florida District Court of Appeals |
Marguerite H. Davis and James E. Alderman of Swann and Haddock, P.A., Tallahassee, for Florida Patient's Compensation Fund.
Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for Robert B. Smith, M.D.
Edward E. Perse of Horton, Perse & Ginsberg, and Hoppe & Backmeyer, Miami, for Harriet R. Sitomer.
Appellee, Harriet Sitomer (Sitomer), sued appellant, Dr. Robert Smith (Smith) and Florida Patient's Compensation Fund (the Fund) for medical malpractice. From a jury verdict and judgment for Sitomer and an award of attorney's fees and costs assessed against them, Smith and the Fund have perfected these consolidated appeals.
Sitomer sought the advice of her doctor, Smith, a cosmetic surgeon, after she discovered a lump in her breast. The lump proved to be benign; however, Sitomer had a history of breast cancer in her family, so it was decided she should have a bilateral subcutaneous mastectomy. This procedure involves the removal of breast tissue and the replacement of it with an implant. When Sitomer was discharged from the hospital on June 16, 1981, she noticed that her breasts, which had been swollen and discolored, had turned black and the skin was crusty and blistering. The condition worsened and she inquired of Smith whether the implants were being rejected. He assured her that was not the case; that she did not have any infection, and he told her not to worry about it. Smith says he recommended that she return to the hospital and have immediate surgery to replace the implants. When things did not improve and skin loss continued until the implants became exposed, Smith performed emergency surgery for the removal of the implants. Thereafter, Smith performed further surgery and inserted new implants beneath the muscle rather than between the muscle and skin. Sitomer progressed well and no further complications ensued. However, by then Sitomer had significant scarring due to loss of skin tissue from the original procedure. Sitomer believed this would be rectified eventually but was told by Smith in December, 1982, that nothing could be done about the extensive scarring. Sitomer then sought a second opinion and learned of the alleged negligence involved in the original procedure.
The first two points for our consideration are presented by the Fund. It suggests that error occurred 1) in the trial court's failure to grant a directed verdict in favor of the Fund based upon the two-year statute of limitations contained in section 95.11(4)(b), Florida Statutes (1981), and 2) in giving an erroneous instruction to the jury regarding the statute of limitations in a medical malpractice case and including question number three in the special jury verdict form.
Section 95.11(4)(b), Florida Statutes (1981), provides that an action for medical malpractice shall be commenced within two years of the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered in the exercise of due diligence. This action against Smith was timely filed within the two-year period; however, the Fund was not joined as a party until later and it claimed that the statute had run vis-a-vis the claim against it. The Fund argued that Sitomer should have known of the alleged negligence, or at least the injury, not later than July, 1981, when the emergency surgical procedure was performed to remove the exposed implants, because Smith testified he had advised her early on of her condition and that she should have additional surgery to correct the condition. On the contrary, Sitomer testified that Smith kept reassuring her everything was all right until the implants became exposed and she submitted to the emergency surgery. Even then she had complete confidence in Smith and remained his patient for another seventeen months during which time she underwent the second implant surgery. Her testimony indicated that she was not aware that her legal rights had been invaded until she sought a second opinion because Smith had advised her there was nothing that could be done We fail to find any error in the submission of the statute of limitations issue to the jury. There was a substantial question of fact regarding the extent and the timing of notice to Sitomer of the injury and its cause with regard to when the statute of limitations was triggered. As the court said in Florida Patient's Compensation Fund v. Tillman, 453 So.2d 1376, 1380 (Fla. 4th DCA 1984), modified, 487 So.2d 1032 (1986): "Where there is a question as to notice or discovery in a medical malpractice action, it is for the jury to decide when the statute of limitations begins to run."
about the extensive scarring that had resulted.
Adverting to the second question presented, it is contended that the trial court improperly instructed the jury on the controlling law regarding the statute of limitations in a medical malpractice case and in posing an inaccurate and misleading question on the jury verdict form. The instruction complained of stated:
On the defense of the Florida Compensation Fund, they have raised the defense that the Plaintiff failed to commence her action within two years of the date the Plaintiff discovered or should have discovered the incident giving rise to this action. The parties have stipulated that this action was commenced against the Florida Patient's Compensation on December 26, 1984. Therefore, in order for the Florida Patient's Compensation Fund to prevail on their affirmative defense, they must prove by the greater weight of the evidence that the Plaintiff discovered or should have discovered the incident giving rise to this action on or before December 26, 1982.
To discover an incident the Plaintiff either must have discovered or should have discovered three things They are: One, that a medical procedure was performed. Two, that the medical procedure was negligently performed. Three, that the Plaintiff suffered an injury as a result.
We do not find reversible error in the foregoing instruction. It is consistent with the current case law because the three requirements listed are prefaced by the phrase stating that "the Plaintiff either must have discovered or should have discovered" those things. The Fund relies on Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), in arguing that the instruction was erroneous because it required the jury to decide only when the plaintiff knew or should have known of the negligence of the doctor. The Fund submits that the instruction should have reflected that the statute of limitations begins to run when the plaintiff has notice or should have had notice of either the negligent act or the injury. It submits that the injury in this case would have been on the date the emergency surgery was performed, July 16, 1981. However, in Schafer v. Lehrer, 476 So.2d 781 (Fla. 4th DCA 1985), this court held that knowledge of a physical injury alone, without knowledge that the injury resulted from a negligent act, does not trigger the limitations period. While the plaintiff may not have actual knowledge of the negligence, if the plaintiff should have known that the injury was caused by tortious conduct, through constructive notice, then the limitations period begins to run. See Humber v. Ross, 509 So.2d 356 (Fla 4th DCA 1987). Thus, the statute of limitations in a medical malpractice case begins to run when the plaintiff has been put on notice of an invasion of his legal rights, which occurs when the plaintiff has notice of either the negligent act giving rise to the cause of action, or the existence of an injury that is the consequence of the negligent act. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Wilhelm v. Traynor, 434 So.2d 1011 (Fla. 5th DCA 1983), rev. denied, 444 So.2d 418 (1984); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). It must be remembered, however, that knowledge of an injury, without more, does not...
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