Frankowitz v. Propst, 83-2393
| Decision Date | 05 March 1986 |
| Docket Number | No. 83-2393,83-2393 |
| Citation | 11 Fla. L. Weekly 566,489 So.2d 51 |
| Parties | 11 Fla. L. Weekly 566 Stanley FRANKOWITZ, D.O., and Sunrise Medical Group, P.A., Appellants, v. Myrtle Eileen PROPST and Matthias J. Propst, Appellees. |
| Court | Florida District Court of Appeals |
David L. Kahn and Harry M. Hausman, of David L. Kahn, P.A., Fort Lauderdale, for appellants.
Guy B. Bailey, Jr. and Mercedes C. Busto, of Bailey & Dawes, Miami, for appellees.
In this appeal, Dr. Frankowitz, defendant in a medical malpractice case, challenges the trial court's denial of his motion for directed verdict and subsequent entry of judgment for plaintiffs upon the jury's verdict. The trial court found that the statute of limitations did not bar the Propsts' lawsuit. We disagree and reverse.
In the present case, the question of whether the plaintiffs should have known of Dr. Frankowitz's role in the treatment of Mrs. Propst earlier than two years before bringing this action was not an issue for the jury to determine. The means of discovering the fact of Dr. Frankowitz's involvement were readily available to the plaintiffs through an examination of the hospital and medical records, and therefore, as a matter of law, their delay in examining the records did not postpone the running of the statute of limitations. Nardone v. Reynolds, 333 So.2d 25, 34 (Fla.1976). 1
The statute of limitations having run before the filing of the amended complaint which added Dr. Frankowitz as a defendant and alleged that Sunrise Medical Group, P.A., was vicariously responsible for Frankowitz's acts, we now consider whether this amended complaint can be said to relate back to the original complaint timely filed against Dr. Frankowitz's colleagues and Sunrise Medical Group, P.A.
While in the present case it is likely that Dr. Frankowitz knew that his employer, the professional association, and his co-practitioners were being sued by the Propsts, it cannot be said that Dr. Frankowitz and his associates shared an "identity of interest" or that the existing lawsuit afforded Dr. Frankowitz "fair notice" of the plaintiffs' claim against him. Compare Williams v. United States, 405 F.2d 234, 238 (5th Cir.1968). The original complaint filed against Drs. Neily, Thesing, Yezbick and Miller alleging their negligent treatment of Mrs. Propst in failing to diagnose the cause of her post-operative difficulties does not in effect assert a legal claim against Dr. Frankowitz, nor does it sufficiently apprise Dr. Frankowitz that a legal claim against him existed. The conduct or operational facts which give rise to Mrs. Propst's claim against Dr. Frankowitz are not sufficiently developed in the allegations of the original complaint so as to satisfy precepts of fair notice.
We thus conclude that the amended complaint states a new cause of action and does not relate back to the original complaint timely filed against Dr. Frankowitz's colleagues and the professional association as the employer of the colleagues. See Garrido v. Markus, Winter & Spitale Law Firm, 358 So.2d 577 (Fla. 3d DCA 1978). Since this new cause of action is barred by the statute of limitations, we reverse the judgment for the plaintiffs and the denial of defendant's motion for directed verdict, and direct that judgment be entered for Dr. Frankowitz.
Reversed with directions.
The majority opinion concludes that as a matter of law the plaintiffs should have known of Dr. Frankowitz's treatment of her gastrointestinal problems because the medical records were "available" to Mrs. Propst. This conclusion is predicated on the supreme court decision in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), which holds that knowledge of the contents of medical records is imputed even when the contents of the medical records are not actually known. Cf. Schafer v. Lehrer, 476 So.2d 781 (Fla. 4th DCA 1985). ("Even if Dr. Lehrer did not affirmatively prevent his patient from obtaining her records, given the fiduciary nature of the doctor-patient relationship the doctor's duty extends beyond nonconcealment.")
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