Humber v. Ross, 4-86-0479

• Decision Date: 10 June 1987
• Docket Number: No. 4-86-0479,4-86-0479
• Parties: 12 Fla. L. Weekly 1457 William A. HUMBER and Dorothy Humber, his wife, Appellants, v. Thomas ROSS, M.D., and Thomas Ross, M.D., P.A., Doctors Hospital of Lake Worth, Inc., and Florida Patient's Compensation Fund, Appellees.
• Court: Florida District Court of Appeals

Page 356

509 So.2d 356

12 Fla. L. Weekly 1457

William A. HUMBER and Dorothy Humber, his wife, Appellants, v. Thomas ROSS, M.D., and Thomas Ross, M.D., P.A., Doctors Hospital of Lake Worth, Inc., and Florida Patient's Compensation Fund, Appellees.

No. 4-86-0479.

District Court of Appeal of Florida,

Fourth District.

June 10, 1987.

Rehearing Denied July 28, 1987.

Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Thompson & O'Brien, Fort Lauderdale, for appellants.

Nancy P. Maxwell of Metzger & Sonneborn, West Palm Beach, for appellees-Thomas Ross, M.D., and Thomas Ross, M.D., P.A.

Roy Watson of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellee-Doctors Hospital.

Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellee-Florida Patient's Compensation Fund.

GLICKSTEIN, Judge.

Plaintiffs in a medical malpractice suit appeal final judgment in favor of the defendants. We affirm.

William A. Humber is the patient who brought the medical malpractice action against Dr. Thomas Ross and his professional association, Doctors Hospital of Lake Worth, Inc., and later, by amended complaint, Florida Patient's Compensation Fund. His wife was a plaintiff derivatively. They alleged injury because of medical negligence that occurred between December 7, 1979, and December 27, 1979, when Mr. Humber was a patient at Doctors Hospital and under Dr. Ross' care. The initial complaint was filed December 28, 1981. The amended complaint was filed January 31, 1983. The defendants raised a statute of limitations defense. Trial was set for October 21, 1985, and actually proceeded for a few days, but a mistrial was declared because the amount of time needed had been underestimated and the court was unable to allot additional time at that point. The parties agreed, however, that the trial court could hear the issue of the affirmative defense of statute of limitations on a non-jury basis.

A hearing on that issue was held on November 1, 1985. The basic question was when did the plaintiffs discover that they had a cause of action, or when should they have reasonably made this discovery. By final judgment rendered February 13, 1986, the trial court entered final judgment in favor of the defendants, having found that Mrs. Humber knew or should have known of the cause of action the day Mr. Humber fell and broke his hip, December 10, 1979, and Mr. Humber knew or should have known at least by December 27, 1979, when he left the hospital. The limitation period was thus concluded no later than December 27, 1981, the day before the initial complaint was filed against Dr. Ross and the hospital. We agree.

On December 7, 1979, on Dr. Ross' orders, Mr. Humber, then aged 61, entered Doctors Hospital for treatment of a herpes zoster infection on his forehead which could have endangered his vision. Dr. Ross is a dermatologist. Humber had trouble sleeping in the hospital, and Dr. Ross prescribed a stronger sleeping medication than Humber was already taking, on December 9, 1979, at Humber's request. According to Mrs. Humber, Mr. Humber was so heavily sedated that day that all he did was drift in and out of sleep.

According to the nurses, they found Mr. Humber sprawled on the floor at 2:30 a.m. December 10, 1979. He was lethargic and disoriented. The nurses put him back in his bed. Although Dr. Ross said he relied on the nursing staff to tell him of any unusual occurrences, Dr. Ross was not immediately notified of this incident. Because Humber complained of hip pain, the nurses contacted Dr. Ross at about 6:00 a.m. and he arrived at the hospital at about 7:00 a.m. Dr. Ross ordered x-ray of the hip. The x-ray disclosed a fractured hip. Dr. Ross notified Mrs. Humber. Mr. Humber had no recollection of the fall and did not know how the fracture occurred.

Either on December 10 or the next day there was a conversation between Dr. Ross and Mrs. Humber, during which Dr. Ross told her which physicians he had called in to treat Mr. Humber, and answered her questions about the medications he had prescribed for the patient. Mr. Humber suffered a myocardial infarction sometime later. The record does not seem to show exactly when: Humber's patient chart indicates it was diagnosed on December 13. This was taken to explain the pulmonary edema which had been observed earlier. Because of the skin infection and the heart attack, treatment for the hip fracture was postponed. There were also neurological symptoms which for a while were thought to have possibly been caused by a stroke or two.

According to Mrs. Humber, Dr. Ross told her on December 10 that her husband had broken restraints he was under, tried to climb over the bedrail, and fallen, hurting himself. She had no knowledge of any restraints, and had seen her husband get in and out of the bed by going around the bedrails, which extended only halfway down the side of the bed. She was confused by Dr. Ross' explanation of the injury. At the time, however, Mrs. Humber said, she had no reason to believe that Dr. Ross or the hospital had any responsibility for her husband's fall.

The Humbers were new in the area and did not know the reputation of hospitals in the area. Mrs. Humber was concerned that her husband's fracture had not been set at once, as she thought fractures always were. She consulted Basil Diamond, a distant relative by marriage. He is also an attorney, but both she and Diamond testified that at the time the consultation was of the family friend nature, not the attorney-client kind. It seemed to Diamond that Mrs. Humber did not understand the nature of her husband's illnesses or what were the possible treatments. He suggested she talk to someone in the hospital administration and ask...