Gonzales v. Jacksonville General Hospital, Inc.

• Decision Date: 22 December 1978
• Docket Number: No. GG-388,GG-388
• Parties: Linda GONZALES, Appellant, v. JACKSONVILLE GENERAL HOSPITAL, INCORPORATED, a corporation, Homemakers Incorporated, a corporation, and Medical Personnel Pool of Duval County, Incorporated, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 800

365 So.2d 800

Linda GONZALES, Appellant, v. JACKSONVILLE GENERAL HOSPITAL, INCORPORATED, a corporation, Homemakers Incorporated, a corporation, and Medical Personnel Pool of Duval County, Incorporated, a corporation, Appellees.

No. GG-388.

District Court of Appeal of Florida, First District.

Dec. 22, 1978.

Howard T. Snyder and James L. Harrison of Harrison & Snyder, Jacksonville, for appellant.

Richard M. Hart, Jr. of Howell, Howell, Liles & Braddock, Jacksonville, John I. Todd, Jr., Jacksonville, for appellees.

PER CURIAM.

This is an appeal from a summary final judgment by which the trial judge held plaintiff's action to be barred by the statute of limitations, F.S. 95.11(6), Florida Statutes 1973.

During the evening of April 2, 1973, while appellant, Linda Gonzales, (plaintiff in the trial court) was a patient at Jacksonville General Hospital, Incorporated, a nurse gave her a shot in the buttocks. She immediately experienced severe pain and reported the incident to the supervisor. Her complaint alleges substantial injuries resulting from the shot. Over two years later, to wit: On November 12, 1975, the plaintiff filed a claim under the Medical Malpractice Reform Act against Jacksonville General Hospital, Incorporated. The hospital made third party claims against appellees Homemakers Incorporated, and Medical Personnel Pool of Duval County, Incorporated, alleging that one or the other supplied the nurse who administered the shot. By stipulation of all parties that claim for medical malpractice was dismissed. On July 9, 1976 the plaintiff commenced action against Jacksonville General Hospital, Incorporated whereupon Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated were again joined as third party defendants. In due course a second amended complaint was filed whereby the plaintiff alleged, inter alia, that for a consideration Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated had undertaken to provide to Jacksonville General Hospital, Inc., competent, qualified and professional nurses who were either registered nurses or licensed practical nurses; and that a nurse provided to the hospital by Homemakers, Inc., and Medical Personnel Pool of Duval County, Inc., or either of them, had administered an injection into the plaintiff's buttock in a careless and negligent manner, thereby injuring her.

Depositions in the record reveal that Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated were both engaged in the business of supplying nurses to those needing their services. The person or corporation to whom a nurse was supplied would pay the supplier an agreed upon sum and the supplier in turn would pay the nurse, generally at a rate less than that paid by the user.

All defendants filed motions for summary judgment, urging applicability of a two year statute of limitations. The trial judge granted those motions, reciting as depositive F.S. 95.11(6), Florida Statutes 1973. The plaintiff appealed only the summary judgments in favor of Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated.

There is no issue but that plaintiff's alleged injury was sustained and discovered more than two years prior to the commencement of any action against appellees. Nor is there any question but that the action was commenced within less than four years. The issue, therefore, is which statute is applicable.

F.S. 95.11(6), Florida Statutes 1973, provided for the commencement of actions within two years " * * * to recover damages for injuries to the person arising from any medical, dental, optometric, chiropodial, or chiropractic treatment or surgical operation, * * * ". Subsection (4) of F.S. 95.11 provided for the commencement within four years of "(a)ny action for relief not specifically provided for in this chapter." Chapter 95, Florida Statutes, was substantially revised by Chapter 74-382 which became effective January 1, 1975. It provided, among other things, that a two year limitations period would be applicable to:

"An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional; * * * "

The period applicable to actions founded on negligence was recited to be four years. That act (Chapter 74-382) further provided:

"This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred."

Chapter 95, Florida Statutes, was further amended by Chapter 75-9, Laws of Florida, which became effective May 20, 1975. By that act F.S. 95.11 was amended to read as follows:

"95.11 Limitations other than for the recovery of real property. Actions other than for recovery of real property shall be commenced as follows:

"(4) WITHIN TWO YEARS.

"(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

"(b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two 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 seven years from the date the incident giving rise to the injury occurred."

Appellant first contends that since she has couched her second amended complaint in terms of carelessness and negligence and that since appellees did not themselves provide medical or other such treatment then F.S. 95.11(6) is not applicable and that therefore the four year statute of limitations is applicable. We reject that contention on that premise. Clearly, unless the nurse furnished by appellees (or one of them) was careless or negligent and thereby caused injury to appellant then no liability can be visited upon appellees. The act of administering the shot by the nurse, we hold, was a medical act. Accordingly, F.S. 95.11(6), Florida Statutes 1973, was applicable to appellees as well as the hospital. That statute would have, unless rendered ineffective by...