Hanano v. Petrou, 94-4067

Citation683 So.2d 637
Decision Date02 December 1996
Docket NumberNo. 94-4067,94-4067
Parties21 Fla. L. Weekly D2566 Rajaa HANANO and George Horak, Appellants, v. Steven P. PETROU, M.D., Mayo Clinic-Jacksonville; and St. Luke's Hospital Association, Appellees.
CourtCourt of Appeal of Florida (US)

Phyllis J. Towzey of Carter, Stein, Ford, Schaaf & Towzey, St. Petersburg, for Appellants.

Joanne L. Martin, Legal Counsel, Mayo Clinic, George E. Schulz, Jr. of Holland & Knight, Jacksonville; Susan L. Turner of Holland & Knight, Tallahassee, for Appellees.

VAN NORTWICK, Judge.

Rajaa Hanano and George Horak, her husband, appeal an order dismissing their complaint with prejudice based on the application of the statute of limitations. Appellants filed a complaint against Steven P. Petrou, M.D., Mayo Clinic-Jacksonville, and St. Luke's Hospital Association, appellees, seeking damages for alleged medical malpractice and negligence arising out of the surgical removal of Hanano's left kidney by Dr. Petrou and the related medical tests and diagnoses performed at Mayo Clinic and St. Luke's. Appellees moved to dismiss the complaint for failure to state a cause of action, arguing that the statute of limitations set forth in section 95.11(4)(b), Florida Statutes (1991), had run. The trial court dismissed the complaint with prejudice. Because the complaint does not show on its face that the appellants' cause of action is barred by the statute of limitations, we reverse.

In ruling on a motion to dismiss a complaint for failure to state a cause of action, the trial court must confine itself to the allegations contained within the four corners of the complaint. Pizzi v. Central Bank and Trust Co., 250 So.2d 895, 897 (Fla.1971). Generally, the statute of limitations is an affirmative defense. See Rule 1.110(d) and Form 1.965, Fla.R.Civ.P. Nevertheless, "[a]ffirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b)...." Rule 1.110(d), Fla.R.Civ.P. Thus, where facts supporting the application of the statute affirmatively appear on the face of the complaint, the statute of limitations may be raised by motion to dismiss. Hofer v. Ross, 481 So.2d 939, 940 (Fla. 2d DCA 1985); Toledo Park Homes v. Grant, 447 So.2d 343, 344 (Fla. 4th DCA 1984); Williams v. Covell, 236 So.2d 447, 448 (Fla. 1st DCA 1970).

In the instant case, although the complaint does state that the surgery which is the subject of this action was performed on September 17, 1991, that date by itself does not constitute all facts necessary for the trial court to determine "the time the incident giving rise to the action ... [was] discovered, or should have been discovered with the exercise of due diligence." § 95.11(4)(b), Fla. Stat. (1991). Tanner v. Hartog, 618 So.2d 177 (Fla.1993); Elliot v. Barrow, 526 So.2d 989 (Fla. 1st DCA), rev. denied, 536 So.2d 244 (Fla.1988).

In Tanner, the supreme court analyzed at what point the statute would begin to run in a medical malpractice action, as follows:

[T]he knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice. The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred. (footnote omitted).

Tanner, 618 So.2d at 181-82.

In Elliot, the trial court had dismissed with prejudice the medical malpractice action against the defendant hospital after the hospital successfully argued that the day the decedent fell from the x-ray table was the date the statute of limitations was triggered because the plaintiff was aware of the occurrence of the fall, of its negligent implications, and of the resulting injury. In reversing, this court explained:

[T]he knowledge of physical injury alone, without knowledge that it resulted from a negligent act, does not trigger the statute of limitations. An "incident" giving rise to a cause of action has been defined as consisting of three elements: (1) a medical procedure, (2) tortiously performed, (3) which injures the patient. Therefore plaintiff's knowledge of the fall ... without further...

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3 cases
  • SDI Quarry v. Gateway Estates Park Condo. Ass'n, 1D17–1086
    • United States
    • Court of Appeal of Florida (US)
    • June 22, 2018
    ...bars the instant action, as Fleet must carry the burden of proving a statute of limitations defense."); see also Hanano v. Petrou , 683 So.2d 637, 639 (Fla. 1st DCA 1996).B. Assuming that Appellee's petition was not untimely, Appellant claims that Appellee failed to prove that Appellant's b......
  • S.A.P. v. State, Dept. of Health and Rehabilitative Services, 96-2375
    • United States
    • Court of Appeal of Florida (US)
    • September 3, 1997
    ...her complaint with prejudice and we reverse. Procedural Posture and Issue Presented As this court explained in Hanano v. Petrou, 683 So.2d 637, 638 (Fla. 1st DCA 1996): In ruling on a motion to dismiss a complaint for failure to state a cause of action, the trial court must confine itself t......
  • Woods v. SAPOLSKY, 1D01-4348.
    • United States
    • Court of Appeal of Florida (US)
    • July 9, 2002
    ...within the four corners of the complaint. See Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999); Hanano v. Petrou, 683 So.2d 637 (Fla. 1st DCA 1996). Here, appellant alleged that appellees committed medical malpractice on December 20, 1996. However, that date by itself does no......

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