Jackson v. Georgopolous
| Decision Date | 04 October 1989 |
| Docket Number | No. 88-03093,88-03093 |
| Parties | 14 Fla. L. Weekly 2429 Catherine M. JACKSON, Appellant, v. George A. GEORGOPOLOUS, M.D., Appellee. |
| Court | Florida District Court of Appeals |
Robert F. McAuley, Tampa, for appellant.
John L. Holcomb of Hill, Ward & Henderson, P.A., Tampa, for appellee.
In this medical malpractice suit brought for the death of plaintiff's husband, we affirm the final judgment for defendant which was entered pursuant to a directed verdict determining that the two-year statute of limitations under section 95.11(4)(b), Florida Statutes (1987), barred the suit. This case involves when that two-year period began to run and whether it was tolled by fraudulent concealment.
Between December 25, 1984, when the decedent entered the hospital, and February 23, 1985, when he died in the hospital, Dr. Georgopolous performed four operations on the decedent. Therefore, the incident giving rise to any cause of action for medical malpractice had to have occurred between those dates. Any injury which may have caused the death also occurred between those dates. The family investigation, however, was not begun until February of 1986, and the suit was not filed until August of 1987.
The plaintiff knew that Dr. Georgopolous performed the surgery, and plaintiff had been aware of the decedent's seriously deteriorating condition thereafter and prior to his death at the hospital. Decedent's hospital records were available and not denied to his family. His death certificate, which the decedent's family received shortly after his death, indicated the nature of the surgery and of the injury.
The death certificate attributed the death to "multiple organ failure due to or as a consequence of ... sepsis from duodenal cutaneous fistula due to or as a consequence of repaired abdominal exploration secondary to bowel obstruction due to adhesions." This can be read as meaning generally that death resulted from:
--due to exploratory abdominal surgery, or repair thereof, involving a bowel obstruction from adhesions ["the abnormal union of surfaces normally separate by the formation of new fibrous tissue resulting from an inflammatory process," id. at 26].
The statute of limitations bars this action. The plaintiff was aware of decedent's seriously deteriorating condition prior to his death at the hospital after his surgery. His hospital records were available and not denied to his family. His death certificate, which is described above, was also available to the family, and, in fact, was read at the decedent's funeral by at least one of decedent's sons more than two years prior to the filing of suit. As the trial court noted, "[I]f [defendant] told them the precise facts as he knew them ..., they'd have no more than they did when they got the death certificate."
In Nardone v. Reynolds, 333 So.2d 25, 35 (Fla.1976), the supreme court, quoting from Morgan v. Koch, 419 F.2d 993, 997 (7th Cir.1969), stated In this case, the plaintiff, with due diligence, could have determined what the death certificate meant, either from use of a dictionary or from consultation with someone familiar with that type of terminology. The plaintiff failed to pursue timely any action she may have had and is now barred because she filed her lawsuit six months late.
Further, we find no evidence of fraudulent concealment by Dr. Georgopolous so as to toll the statute of limitations. There was no affirmative misrepresentation by Dr. Georgopolous of the injury to decedent or of the surgical incident resulting in that injury. See Nardone, 333 So.2d at 35, 39-40. We agree.
Affirmed.
LEHAN, J., concurs specially with opinion.
At issue in this case is the precise nature of the notice of injury which triggers the medical malpractice statute of limitations. While I concur in the result reached in the majority opinion, this case, in my view, invites an explanation of the body of case law involving that issue which, on first impression, may appear to include inconsistent cases, but which, upon close analysis, does not. That inconsistency may appear to exist between language in, for example, Moore v. Morris, 475 So.2d 666 (Fla.1985), and Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), on the one hand, and various other cases discussed below, notably Florida Patient's Compensation Fund v. Sitomer, 524 So.2d 671 (Fla. 4th DCA), rev. dismissed, 531 So.2d 1353 (Fla.1988), on the other hand. That the lawyers and the trial court in this case had substantial difficulty trying to reconcile the case law is reflected in the transcript of the arguments in the trial court on the defendant's motion for a directed verdict.
In my view the cases in this area of the law can properly be harmonized, as this concurring opinion undertakes to do. In so doing this opinion undertakes a fairly in depth analysis in order to explain that harmony and thereby to fulfill a primary appellate court function of clarifying the law when clarification is needed. See Scheb, Florida's Courts of Appeal: Intermediate Courts Become Final, 13 Stetson L.Rev. 479 (1984). To accomplish that function, the remainder of this opinion must be, and is, written in the form of a full opinion. That is because all aspects are interrelated, especially how the facts of this case and of other cases may be perceived and phrased. That is also, incidentally, because the remainder of this opinion was initially written as the intended opinion of the court before the majority opinion was written, which accounts for the duplication of language in some procedural and factual parts of the majority opinion and of the remainder of this opinion.
In this medical malpractice suit brought for the death of plaintiff's husband this court affirms the final judgment for defendant which was entered pursuant to a directed verdict determining that the two year statute of limitations under section 95.11(4)(b), Florida Statutes (1987), barred the suit. This case involves when that two year period began to run and whether it was tolled by fraudulent concealment.
The uncontroverted evidence established that more than two years had elapsed at the time of the filing of the suit from the time plaintiff knew or had notice of the injury to the decedent resulting from an incident involving defendant which led to decedent's death, i.e., abdominal surgery performed on decedent by defendant. The sources of that knowledge or notice were as follows. Plaintiff knew that defendant performed the surgery, and plaintiff had been aware of the decedent's seriously deteriorating condition thereafter and prior to his death at the hospital. Decedent's hospital records were available and not denied to his family. His death certificate indicated the nature of the surgery and of the resulting injury.
The death certificate attributed the death to "multiple organ failure due to or as a consequence of ... sepsis from duodenal cutaneous fistula due to or as a consequence of repaired abdominal exploration secondary to bowel obstruction due to adhesions." This can be read as meaning generally that death resulted from:
--due to exploratory abdominal surgery, or repair thereof, involving a bowel obstruction from adhesions ["the abnormal union of surfaces normally separate by the formation of new fibrous tissue resulting from an inflammatory process," id. at 26].
Whether or not plaintiff fully understood the terminology used in the death certificate, which is defined in a standard dictionary is not the point. The point is that with due diligence the plaintiff could have understood what the death certificate meant, either from use of a dictionary or from consultation with someone familiar with that type of terminology. As was said in Nardone, 333 So.2d at 34-35 (Fla.1976), quoting from Morgan v. Koch, 419 F.2d 993, 997 (7th Cir.1969),
Therefore, the time under section 95.11(4)(b) for the filing of suit had expired, even though there was evidence that it was not until a time within two years prior to the filing of suit that plaintiff received particular notice, from a comment as to what a nurse apparently believed, of alleged negligence in the performance of the surgery. See Moore, 475 So.2d at 667 (Fla.1985), quoting Nardone, 333 So.2d at 32 (...
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