Moore v. Morris

Decision Date27 June 1985
Docket NumberNo. 63805,63805
Citation475 So.2d 666,10 Fla. L. Weekly 336
Parties10 Fla. L. Weekly 336 Megan MOORE, et al., Petitioners, v. Chester MORRIS, et al., Respondents.
CourtFlorida Supreme Court

Sams, Gerstein, Ward, Newman and Beckham, and Mark Hicks of Daniels and Hicks, Miami, for petitioners.

Joe N. Unger of the Law Offices of Joe N. Unger, Miami, for Chester Morris, M.D., William J. Brewster, M.D. and North Shore Hosp.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham and Lane and Richard A. Sherman of the Law Offices of Richard A. Sherman, Fort Lauderdale, for Arthur Schatz, M.D.

ADKINS, Justice.

We have before us a petition to review a decision of the Third District Court of Appeal reported as Moore v. Morris, 429 So.2d 1209 (Fla. 3d DCA 1983). Conflict is alleged with decisions of this Court and other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This is an appeal from the granting of a final summary judgment for the defendants in a medical malpractice action. We hold that summary judgment was inappropriate under the facts of this case and we quash the holding of the Third District Court of Appeal.

Megan Moore was born July 9, 1973. The instant action, seeking damages for injuries allegedly sustained at her birth, was filed by her parents Henry and Susan Moore in behalf of their daughter on April 25, 1978. The trial court granted summary judgment for the defendants, holding that the action was barred by the applicable statute of limitations. The Third District Court of Appeal affirmed. The court of appeal determined that the applicable statute of limitations is section 95.11(6), Florida Statutes (1973), and the applicable time to commence the action was within two years of the infant's birth. 429 So.2d at 1209 n. 1 (citations omitted).

This Court has held that the statute of limitations in a medical malpractice case does not begin to run until either "the plaintiff has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act." Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Therefore, the issue to be determined by this case is when the Moores had notice or should have had notice of either the negligent act or of injury to Megan. However, our role as a reviewing Court is narrow. This case comes to us following the granting of a final summary judgment by the trial court and its affirmance by the district court of appeal. Our duty is to determine only whether the granting of the summary judgment was proper.

Summary judgments should be cautiously granted in negligence and malpractice suits. Giallanza v. Sands, 316 So.2d 77 (Fla. 4th DCA 1975). The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966), cert. denied, 232 So.2d 181 (Fla.1969). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So.2d 94 (Fla.1957).

If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Williams v. Lake City, 62 So.2d 732 (Fla.1953); Crovella v. Cochrane, 102 So.2d 307 (Fla. 1st DCA 1958).

The decision of the district court of appeal in the instant case conflicts with all of the above decisions.

All agree that prior to the time for Megan's delivery, Susan Moore experienced a normal pregnancy with no complications. The events leading up to and since Megan's birth are very much in dispute by the parties, however. The district court found the facts as follows:

Prior to the mother being taken to the hospital for delivery it was a normal pregnancy. After she commenced labor the husband was advised there was an emergency and the baby would be taken by Cesarean Section. After the baby was born the father was on notice that for a period in excess of thirty minutes, while the infant was "blue," the doctors had attempted to administer oxygen; that they were unsuccessful in their treatment, and received permission to transfer the infant to the emergency facility at Jackson Hospital, that one of the doctors did not expect the baby to live, another doctor told the father that he did the best he could and (apparently the baby would not live) and he, the father would have to do what he had to do.

While the child was being transported to Jackson in an emergency vehicle her chest was cut open and a tube inserted to assist her in breathing. The parents knew that it was an emergency situation, that there was a problem with the delivery, that the child had swallowed something which restricted breathing, and that the child was starved for oxygen.

429 So.2d at 1209-10.

Based upon these facts, the court concluded that "as a matter of law they (the parents) were on notice from the time of the birth of the alleged negligence or of injury to the infant and therefore, the trial judge was correct in granting a summary judgment based on the statute of limitations." Id. at 1210 (citations omitted).

In its opinion, the Third District appears to have placed great significance upon the existence of an emergency situation, the performance of a Cesarean section, and that the father was advised that the baby might not live due to oxygen deprivation caused by swallowing something while in the womb. There is nothing about these facts which leads conclusively and inescapably to only one conclusion--that there was negligence or injury caused by negligence. To the contrary, these facts are totally consistent with a serious or life threatening situation which arose through natural causes during an operation. Serious medical circumstances arise daily in the practice of medicine and because they are so common in human experience, they cannot, without more, be deemed to impute notice of negligence or injury caused by negligence.

Cesarean sections are not the natural way to give birth. However, the performance of "C" sections as a result of difficulties with delivery are so common in our society that they are accepted as normal and they are not associated with negligence or injury.

The blue complexion of the baby which the Moores believed resulted from a natural biological cause (swallowing something...

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