Hernandez v. Amisub (American Hosp.), Inc.

• Decision Date: 06 September 1995
• Docket Number: No. 94-1743,94-1743
• Citation: 659 So.2d 1316
• Parties: 20 Fla. L. Weekly D2047 Samuel HERNANDEZ and Elizette Hernandez, Appellants, v. AMISUB (AMERICAN HOSPITAL), INC., a Florida Corporation d/b/a A.M.I. Kendall Regional Medical Center and Agustin Latorre, M.D., Appellees.
• Court: Florida District Court of Appeals

Page 1316

659 So.2d 1316

20 Fla. L. Weekly D2047

Samuel HERNANDEZ and Elizette Hernandez, Appellants, v. AMISUB (AMERICAN HOSPITAL), INC., a Florida Corporation d/b/a A.M.I. Kendall Regional Medical Center and Agustin Latorre, M.D., Appellees.

No. 94-1743.

District Court of Appeal of Florida Third District.

Sept. 6, 1995.

David H. Charlip, for appellants.

Parenti, Falk, Waas & Frazier and Gail Leverett Parenti; Silva & Silva and Jorge E. Silva, for appellees.

Before BARKDULL, NESBITT and LEVY, JJ.

LEVY, Judge.

A medical malpractice plaintiff appeals a final order dismissing his complaint with prejudice, as barred by the four-year, medical malpractice statute of repose. We reverse.

I. THE FACTS

On April 4, 1988, Samuel Hernandez (hereinafter "Hernandez"), the plaintiff/appellant, lost consciousness after he began suffering severe abdominal pain while at work. After regaining consciousness, Hernandez consulted his personal physician, appellee Dr. Agustin LaTorre (hereinafter "Dr. LaTorre"), who advised him to go to the hospital. Hernandez went to Kendall Regional Medical Center, a hospital operated by the appellee Amisub (American Hospital) Incorporated (hereinafter "A.M.I."). Hernandez remained in A.M.I. for one week. As he was about to be discharged, Hernandez once again lost consciousness and underwent emergency abdominal surgery to stop internal bleeding. The surgery was performed by Dr. Gustavo Leon on April 11, 1988. During the surgery, a laparotomy towel--a towel measuring approximately 25cm X 17cm X 3cm, when folded--was accidentally left inside Hernandez. Hernandez recovered from the procedure and was later discharged from A.M.I.

In April of 1990, Hernandez began to suffer acute abdominal pains; he had felt little or no discomfort in the preceding two years following the operation. Hernandez consulted Dr. LaTorre, who prescribed treatment based upon his conclusion that Hernandez was suffering from viral gastroenteritis. This treatment temporarily relieved Hernandez's abdominal pain.

By April of 1993, Hernandez was once again suffering from frequent and severe abdominal pain, as well as from digestive problems and overall physical weakness. On April 20, 1993, he again consulted Dr. LaTorre, who concluded that Hernandez was suffering from indigestion and ulcer flare-ups. At no time did Dr. LaTorre diagnose that Hernandez's problem stemmed from the laparotomy towel which had been left in his abdomen.

Thereafter, Hernandez contacted another doctor who performed an x-ray and other tests, and discovered the laparotomy towel in his abdomen. On May 27, 1993, Hernandez had surgery to remove the towel from his abdomen.

On December 30, 1993, Hernandez filed a complaint for medical malpractice against Dr. Leon, A.M.I., and Dr. LaTorre. Hernandez alleged that Dr. Leon and A.M.I. had negligently left the laparotomy towel in his abdomen during the surgery. Hernandez also alleged that A.M.I., and its employees, "knowingly" misrepresented the laparotomy pad count in their operating notes, thereby preventing Hernandez from discovering that the towel had been left in his abdomen. Hernandez additionally claimed negligence on behalf of Dr. LaTorre for failing to properly diagnose the problem in April of 1990, and again in April of 1993.

The trial court stayed the proceedings against Dr. Leon after he filed a suggestion of bankruptcy. ¹ A.M.I. then filed a motion to dismiss the claims against it based upon the four-year statute of repose found in Florida Statutes, Section 95.11(4)(b). The trial court granted A.M.I.'s motion to dismiss and dismissed Hernandez's complaint against A.M.I. with prejudice. Although the trial judge found that Hernandez could not have discovered his injury, by using due diligence, within the initial four-year repose period, he nevertheless found that the statute and caselaw time-barred Hernandez's complaint against A.M.I. Hernandez now appeals.

II. THE CLAIMS AGAINST A.M.I.

The first issue before us is whether the trial court properly applied Florida Statutes, Section 95.11(4)(b) in dismissing Hernandez's medical malpractice complaint against A.M.I. A.M.I. contends that the trial court properly dismissed Hernandez's claims against it, as being barred by the four-year statute of repose, since the complaint was filed more than four years after the date of the incident giving rise to Hernandez's action against A.M.I.--i.e., the date of Hernandez's operation. Hernandez, on the other hand, contends that he alleged sufficient facts in his complaint against A.M.I. to implicate the seven-year statute of repose and therefore maintains that the trial court erred in relying on the four-year repose period in dismissing his claims against A.M.I.; it is undisputed that the complaint was filed within the seven-year repose period. For the ensuing reasons, we find that the trial court erred in dismissing Hernandez's complaint against A.M.I.

Florida Statutes, Section 95.11(4)(b) provides, in pertinent part, as follows:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 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 7 years from the date the incident giving rise to the injury occurred.

Sec. 95.11(4)(b), Fla.Stat. (1993) (emphasis added). The plain language of this statute reveals that medical malpractice claims are subject to a two year statute of limitations, a four-year statute of repose, and, where there have been allegations that the medical provider has prevented the plaintiff from discovering his or her injury within the four-year repose period by way of fraud, concealment, or intentional misrepresentation of fact, a seven-year statute of repose. Carr v. Broward County, 541 So.2d 92 (Fla.1989); Arango v. Orr, 656 So.2d 248 (Fla. 2d DCA 1995). With respect to Hernandez's claims against A.M.I., we are only concerned with the repose periods in Section 95.11(4)(b). We note that a statute of repose, as distinguished from a statute of limitations, will bar a cause of a action where that action is filed after a specified time period, normally measured from the occurrence of an event specified in the statute, without regard to whether the cause of action has accrued. See Kush v. Lloyd, 616 So.2d 415 (Fla.1992); University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991), modified, Tanner v. Hartog, 618 So.2d 177 (Fla.1993); Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735 (Fla.1987); Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987), aff'd, 541 So.2d 92 (Fla.1989). A statute of limitation, on the other hand, will only bar a cause of action after a specified period of time has elapsed since the accrual of the cause of action. Kush; Bogorff; Melendez; Carr. It is therefore altogether possible that a cause of action may be barred by the statute of repose before the statute of limitations has even commenced. Kush, 616 So.2d at 421; accord Melendez, 515 So.2d at 736. Keeping this analysis in mind, we now turn to the specific repose periods in Section 95.11(4)(b).

In the instant case, the trial court properly found that the triggering event for the statute of repose, as it relates to Hernandez's claims against A.M.I., was the date of the alleged malpractice by A.M.I., in other words, the date of the 1988 operation. That operation was performed on April 11, 1988. In distinguishing between the application of the four and seven-year repose periods, the determinative factor is whether the plaintiff's complaint contains allegations that the medical provider, either by way of fraud, concealment, or intentional misrepresentation of fact, prevented the plaintiff from discovering the injury within the initial four-year repose period. E.g., Carr, 541 So.2d at 94; Arango, 656 So.2d at 250. "When fraud, concealment, or intentional misrepresentation of fact prevented discovery of the injury, the [four-year] repose period is extended two years from the time the injury is discovered or should have been discovered, but will never be extended more than seven years from the date of the malpractice." Arango, 656 So.2d at 250; accord Kush, 616 So.2d at 420-422. Consequently, but for any allegations of fraud, concealment, or intentional misrepresentation of fact, Hernandez's action against A.M.I. would be barred by the four-year repose period on April 11, 1992.

However, in Count VI of Hernandez's Complaint, specifically paragraphs 50 through 53, Hernandez alleges the following:

50. During the final phase of the aforementioned Exploratory Laparotomy as performed by DR. LEON and A.M.I., A.M.I., by and through its employees and operating room personnel, misrepresented material facts on the face of their own operative notes and documents regarding the fact that a material and pad count was performed and regarding the number of surgical materials and pads inserted into Plaintiff's abdomen which were counted as having been removed.

51. Either or both of the aforementioned misrepresentations were made knowingly with wanton and reckless disregard of the Plaintiff's health and welfare during the time that time in which the plaintiff he entrusted his body and well-being to the hands of A.M.I.'s employees and operating room personnel.

52. Thus, Defendant A.M.I., by and through its employees, misrepresented material facts which...