Hellinger v. Fike, 86-1288
| Decision Date | 06 November 1986 |
| Docket Number | No. 86-1288,86-1288 |
| Citation | 11 Fla. L. Weekly 2333,503 So.2d 905 |
| Parties | 11 Fla. L. Weekly 2333 Frank HELLINGER, M.D., Rodney Dunaway, M.D., Charles J. Kurth, M.D., and Adventist Health Systems/Sun Belt, Inc., d/b/a Florida Hospital (formerly known as Florida Sanitarium and Benevolent Association), Petitioners, v. Russell Charles FIKE, as Personal Representative of the Estate of Evelyn Margaret Fike, Deceased, Respondent. |
| Court | Florida District Court of Appeals |
Francis E. Pierce, III, and Kathryn D. Mackinnon of Gurney & Handley, P.A., and B.C. Pyle, Orlando, for petitioner Frank Hellinger, M.D.
Michael A. Estes, Orlando, for petitioner Rodney Dunaway, M.D.
Ronald S. Webster, Orlando, for petitioner Charles J. Kurth, M.D.
J. Joaquin Fraxedas, Orlando, for petitioner Adventist Health Systems.
Harry Anderson of Anderson and Hurt, P.A., Orlando, for respondent.
ON PETITION FOR WRIT OF PROHIBITION
This matter is before this court on petition for writ of certiorari to review an order of the trial court denying a motion for summary judgment.
Although we would not ordinarily entertain review of an order denying summary judgment, by certiorari or otherwise, in this case we shall do so. The petition for writ of certiorari is treated as a petition for writ of prohibition as was the petition in Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984).
The order denying summary judgment in this case declared a statute of repose unconstitutional thereby causing the trial court to exercise jurisdiction in a case where it would have no jurisdiction if the statute were constitutionally valid. Therefore, as in Brogan, we shall proceed to consider the order.
The cause of action below arose out of an alleged medical misdiagnosis of Evelyn Fike. The complaint alleges that in February 1972, upon referral from her general practitioner, Mrs. Fike sought evaluation from petitioners for a suspected neurological condition. Petitioners allegedly diagnosed that Mrs. Fike had a subacute peripheral neuropathy such as subacute Guillain-Barre syndrome and/or subacute polyneuropathy. No treatment was instituted and Mrs. Fike was allegedly led to believe she was suffering from a neurological condition which was fatal, untreatable and from which she could expect to deteriorate until the time of her demise.
In June 1981, Evelyn Fike nearly died and was admitted to the hospital. She came under the care of two other doctors who performed a muscle biopsy and confirmed that Evelyn Fike was not suffering from a nerve disease as previously diagnosed but was suffering from a muscle disease known as chronic inflammatory myopathy. On February 25, 1983, Evelyn Fike instituted this bodily injury action in Orange County Circuit Court. For the purposes of the summary judgment the petitioners have accepted as fact that on June 29, 1981, Evelyn Fike learned she was suffering from a condition other than that allegedly diagnosed by the petitioners.
The petitioners moved for summary judgment on the basis that the action was barred by the medical malpractice statute of repose. § 95.11(4)(b), Fla.Stat. (1983). The trial court denied this motion for summary judgment and stated that in this situation the statute would act as an unconstitutional denial of access to the courts in violation of Article I, section 21, Florida Constitution.
We find that the four-year absolute bar...
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Bogorff By and Through Bogorff v. Koch
...for in Chapter 95. 5 See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.1987). In malpractice lawsuits governed by this section, timeliness of filing is measur......
- Hellinger v. Fike
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