Hickox v. University Community Hospital, Inc., 79-850

• Decision Date: 16 April 1980
• Docket Number: No. 79-850,79-850
• Citation: 384 So.2d 160
• Parties: Ronald HICKOX, as Personal Representative of Estate of Katherine H. Hickox, Deceased, Appellant, v. UNIVERSITY COMMUNITY HOSPITAL, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 160

384 So.2d 160

Ronald HICKOX, as Personal Representative of Estate of Katherine H. Hickox, Deceased, Appellant, v. UNIVERSITY COMMUNITY HOSPITAL, INC., et al., Appellees.

No. 79-850.

District Court of Appeal of Florida, Second District.

April 16, 1980.

Rehearing Denied June 11, 1980.

Richard A. Bokor, Tampa, and David V. Scott of Kelso & Scott, New Albany, Ind., for appellant.

William E. Hennen and T. Gregory Slother of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellees Laura A. Cohen and Argonaut Ins. Co.

Jeffrey R. Fuller of Williams, Brasfield & Wertz, P.A., St. Petersburg, for appellee Reserve Ins. Co. DANAHY, Judge.

Ronald Hickox, as personal representative of the estate of Katherine H. Hickox, deceased, appeals an order of dismissal with prejudice in a medical malpractice action against the estate of Maurice Cohen, M.D., and Dr. Cohen's insurance carriers. The dismissal was granted because "no claim for mediation was filed within two years of the date of the death of the decedent, Katherine H. Hickox, as required by the provisions of Sections 768.44 and 95.11(4)(d), Florida Statutes . . . ." We reverse.

Katherine Hickox died on June 11, 1974. On June 30, 1975, Ronald Hickox, as personal representative, filed a complaint in circuit court against Dr. Ira Gouterman, University Community Hospital, Inc., and their respective insurance carriers. On July 1, 1975, the mediation provisions of the Florida Medical Malpractice Reform Act, Section 768.44, Florida Statutes, went into effect. On June 11, 1976, Hickox filed an amended complaint adding several defendants, including the Cohen estate. Cohen's estate filed a motion to dismiss because of the bar of the statute of limitations and Hickox' failure to file a mediation claim prior to filing the civil action. The court granted the dismissal of Cohen's estate for lack of jurisdiction because no mediation claim had been filed.

On June 14, 1977, Hickox filed a claim for medical mediation and proceedings were had on that claim which resulted in a decision in favor of Cohen's estate filed April 19, 1978. Hickox then filed a motion in the action still pending in circuit court to reinstate the count in the original complaint which had previously been dismissed as to Cohen's estate. The court granted the motion to reinstate. Cohen's estate filed its answer to the amended complaint, raising as affirmative defenses the bar of the statute of limitations and lack of subject matter jurisdiction.

Reserve Insurance Company, one of Cohen's insurance carriers, moved to dismiss the complaint with prejudice as to itself and Cohen's estate on the grounds of lack of subject matter jurisdiction for failure to timely mediate the claim; failure to state a cause of action by failure to allege mediation; and/or the bar of the statute of limitations for failure to file mediation or a common law action within two years of decedent's death and/or failure to file a common law action within sixty days of the termination of mediation. Cohen's estate also filed a motion for summary judgment raising essentially the same issues. The court entered an order of dismissal with prejudice as to Cohen's estate and his insurance carriers.

The two important issues we must resolve in this case are (1) whether the provisions of the Medical Mediation Act apply to Hickox' cause of action against Cohen's...