Florida Patient's Compensation Fund v. Tillman

• Citation: 487 So.2d 1032,11 Fla. L. Weekly 74
• Decision Date: 27 February 1986
• Docket Number: 65998 and 66025,65997,Nos. 65736,s. 65736
• Parties: 11 Fla. L. Weekly 74 FLORIDA PATIENT'S COMPENSATION FUND, Petitioner, v. Joseph TILLMAN, et al, Respondents. ST. MARY'S HOSPITAL, Petitioner, v. Joseph TILLMAN, et al., Respondents. ST. MARY'S HOSPITAL, Appellant, v. Joseph TILLMAN, et al., Appellees. Bruce WAXMAN, M.D., Petitioner/Cross-Respondent, v. Joseph TILLMAN, et al., Respondents/Cross-Petitioners.
• Court: United States State Supreme Court of Florida

Page 1032

487 So.2d 1032

11 Fla. L. Weekly 74

FLORIDA PATIENT'S COMPENSATION FUND, Petitioner, v. Joseph TILLMAN, et al, Respondents.

ST. MARY'S HOSPITAL, Petitioner, v. Joseph TILLMAN, et al., Respondents.

ST. MARY'S HOSPITAL, Appellant, v. Joseph TILLMAN, et al., Appellees.

Bruce WAXMAN, M.D., Petitioner/Cross-Respondent, v. Joseph TILLMAN, et al., Respondents/Cross-Petitioners.

Nos. 65736, 65997, 65998 and 66025.

Supreme Court of Florida.

Feb. 27, 1986.

Rehearing Denied May 28, 1986.

Richard B. Collins, Robert W. Goldman and Samuel R. Neel, III of Perkins & Collins, Tallahassee, for Florida Patient's Compensation Fund, petitioner.

David F. Crow and Rosemary Cooney of Paxton, Crow & Bragg, West Palm Beach, for St. Mary's Hospital, petitioner and appellant.

Robert M. Klein and Debra J. Snow of Stephens, Lynn, Chernay and Klein, Miami, for Bruce Waxman, M.D., petitioner/cross-respondent.

Kocha & Houston, P.A., West Palm Beach and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for Joseph Tillman, respondents, appellees and cross-petitioners.

PER CURIAM.

We have before us by petition for review Florida Patient's Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984), due to express and direct conflict with Taddiken v. Florida Patient's Compensation Fund, 478 So.2d 1058 (Fla.1985), and Florida Patient's Compensation Fund v. Von Stetina, 474 So.2d 783 (Fla.1985). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

The facts in this medical malpractice action, as stated by the district court, are as follows:

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 $130,000 after reducing the damages by 12%, representing Tillman's comparative negligence.... Thereafter, the trial court awarded attorney's fees to Tillman....

Tillman, 453 So.2d at 1378. Tillman, Dr. Waxman, St. Mary's Hospital (St. Mary's) and the Florida Patient's Compensation Fund (Fund) all appealed. The district court affirmed all but the attorney's fees to Tillman and the reduction of Tillman's award from Dr. Waxman due to Tillman's comparative negligence. Dr. Waxman, St. Mary's and the Fund have petitioned for review.

DR. WAXMAN

Dr. Waxman argues here, as he did to the district court, that Tillman's claim was barred by the two-year malpractice statute of limitations, section 95.11(4)(b), Florida Statutes (1979). Under the statute, discovery of the "incident giving rise to the cause of action" is the crucial date that triggers the running of the statute. The evidence on this issue was conflicting, Dr. Waxman contending that Tillman discovered the incident as early as April, 1978, when he told Tillman of the mismatched components, or during the period thereafter when Tillman felt he was not improving, and Tillman contending that Dr. Waxman assured him continuously that he was improving and that he had no reason to believe otherwise until January or February of 1979 when Dr. Ennis took x-rays and told him he needed another operation. We believe that the district court was correct in concluding that the evidence presented was sufficient to take the statute of limitations issue to the jury and sustain the finding that the cause of action was not barred.

Dr. Waxman argues in Issue II that the jury instruction and the jury verdict form on the statute of limitations were improperly presented to the jury. Although he argued to the trial court in opposition to Tillman's requested instruction, he did not present the court with a written proposed alternative instruction, and he conceded this point at oral argument. Moreover, we find no reversible error here, where the instruction tracked the applicable statute of limitations. Counsel referred in his motion for new trial to the "Defendant's Requested Jury Verdict Interrogatory Form," but we have not found such a form in the record. Tillman's counsel suggested at oral argument that the form was submitted sometime after the charge conference, during which the court had...