Johnson v. Mullee, MM-430
| Decision Date | 06 June 1980 |
| Docket Number | No. MM-430,MM-430 |
| Court | Florida District Court of Appeals |
| Parties | Erik JOHNSON, as Personal Representative of the Estate of Nancy M. Johnson, Deceased, Appellant, v. Robert G. MULLEE, M.D., and Aetna Casualty & Surety Company, Appellees. |
Edna L. Caruso, and Christian D. Searcy of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
L. William Graham of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellees.
This appeal is from a final summary judgment in a medical malpractice suit ruling that appellant's action is barred by the statute of limitations. We reverse.
The deceased and her husband Erik Johnson (now personal representative of the Estate of Nancy M. Johnson, deceased) began this action by filing a medical liability mediation claim for medical malpractice against appellee on November 29, 1976. The mediation panel found that appellee was not guilty of actionable negligence. Within 60 days of the conclusion of the mediation claim, the deceased and her husband filed a personal injury action against appellee. When Nancy Johnson died on January 3, 1978, appellant filed an amended complaint for wrongful death against appellee doctor and his medical malpractice insurer. The undisputed facts are as follows: On September 22, 1972, 26-year-old Nancy Johnson consulted appellee doctor for a breast examination. The doctor found "diffusely cystic areas" in Nancy's left breast but pursued no investigation into the nature of those lumps. Nancy next visited the doctor on March 1, 1973, to have him remove an IUD. He did not examine her breasts again at that time. On March 7, 1973, having noticed a discharge from her left breast, Nancy consulted her father, a surgeon, who, after examining her breast, performed a biopsy, and a subsequent radical mastectomy on March 12, 1973, after which his suspicion of malignancy was confirmed. Pathology reports on the removed tissues following the operation showed cancer of the breast with metastasis to three auxiliary lymph nodes. Thus, at that time, Nancy had actual knowledge of the alleged negligent failure of appellee doctor to diagnose her cancer, and of the metastasis of the cancer to her lymph nodes. No evidence of further metastasis beyond the lymph nodes was found prior to February 1975, when metastatic cancer showed up on a bone scan, and it was determined that the cancer had spread to the ribs and skull. Despite treatments and operations, Nancy died in January 1978 from the spread of metastatic breast cancer.
The trial court ruled that as a matter of law whatever cause of action Nancy had against appellee doctor for negligent failure to diagnose breast cancer accrued in March 1973 when the correct diagnosis was made and metastasis to the lymph nodes was discovered because at that time Nancy had notice of the alleged negligent act and of an allegedly resultant injury and consequent damage, although she may not have had actual notice of the ultimate extent of the injury and consequent damage until a later date. The court found that Nancy's cause of action was barred in March 1975 by the two-year statute of limitations for claims based upon medical malpractice. The court further found . . . Under the provisions of section 768.19 and Florida decisionary law, a bar to the decedent's right to recovery for her personal injury had she lived will also bar any subsequent recovery for her wrongful death by her personal representative; and that since decedent would not have been entitled within the intendment of § 768.19 to maintain an action if death had not ensued, her personal representative has no statutory right of action for wrongful death.
The statute of limitations applicable to malpractice claims from July 1, 1972, to January 1, 1975, is contained in Florida Statutes 1973 and provides as follows:
95.11(6) WITHIN TWO YEARS. . . . an action to recover damages for injuries to the person arising from any medical . . . treatment or surgical operation, the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury. (Emphasis added.)
The foregoing statute was amended effective January 1, 1975, by Chapter 74-382, Laws of Florida, to provide:
(a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. (Emphasis added.)
The statute as amended remained in effect until May 20, 1975, when by Chapter 75-9, Laws of Florida, a new amendment was adopted, which provides in pertinent part as follows:
(b) An action for medical malpractice shall be commenced within 2 years from the time the incident occurred, giving rise to the action, or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . (§ 95.11(4)(b), Florida Statutes 1975 (emphasis added).)
Appellee contends that the applicable statute of limitations was the one in effect in 1976 when decedent's claim in medical mediation was filed; that under that statute, decedent had a cause of action in 1973 in that she discovered the "incident" giving rise to the action in 19...
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