Nardone v. Reynolds
| Decision Date | 17 September 1976 |
| Docket Number | No. 72-2264,72-2264 |
| Citation | 538 F.2d 1131 |
| Parties | Nicholas NARDONE, an infant, by his father and next friend, Nicholas H. Nardone, and Nicholas H. Nardone, Individually, Plaintiffs-Appellants, v. David H. REYNOLDS, Theodore Sarafoglu, Fredie P. Gargano and Metropolitan DadeCounty, a political subdivision of the State of Florida, Donald Sheffel, American Home Assurance Company, Hartford Accident and Indemnity Company, andInsuranceCompany of North America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Abraham H. Shukat, Miami Beach, Fla., Alfred S. Julien, New York City, for plaintiffs-appellants.
S. O. Carson, John H. Wahl, Jr., Miami, Fla., for Reynolds and Hartford Ins. Co.
Frank A. Lane, Miami, Fla., for Ins. Co. of North America.
Steven R. Berger, Miami, Fla., for Sheffel.
Henry Burnett, Miami, Fla., for Gargano, American Home Assurance and Metropolitan Dade County.
John R. Hoehl, James E. Tribble, Miami, Fla., for Gargano.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.
The Nardones filed this medical malpractice suit in May 1971, more than five years after Nicholas Nardone's treatment at and discharge from Jackson Memorial Hospital in Dade County, Florida. The District Court granted summary judgment for the several defendants 1 on the basis that the claim was barred by the four-year statute of limitations applicable to Florida medical malpractice actions. FSA § 95.11(4). 2 Because the case presented important policy questions concerning Florida's "discovery rule" and the meaning of the term "injury" as they affect commencement of the limitations period, we certified the case to the Florida Supreme Court. Nardone v. Reynolds, 5 Cir., 1975, 508 F.2d 660. The Florida Court has now handed down an extensive opinion clearly answering all of the certified legal issues. 3 Nardone v. Reynolds, Fla., 1976, 333 So.2d 25. We remand to the District Court for further consideration of the single, only narrow question left open under the Florida Court's opinion. 4
The sad facts of the case detailing the deterioration of young Nardone to a comatose state of blindness and irreversible brain damage 5 are presented at length in the Florida opinion. Nardone v. Reynolds, supra, 333 So.2d at 28-29. 6 On certification this Court submitted and the Supreme Court of Florida answered the following dispositive questions:
Questions Answers 7
------------------------------------------------ ---------------------
"I. In a medical malpractice case does
the period of limitation (F.S.A.95.11(4))
commence:
(a) As to the parents and legal
guardians of the incompetent minor
in their own right
(b) As to the parents and legal
gudardians of the incompetent minor as YES
next friends in behalf of the minor As to all plaintiffs.
(c) As to the incompetent minor in
his own right when the parents and
legal guardians of the incompetent
minor have (i) knowlege of the
physical condition and the drastic
change therein during the course of
medical treatment, but (ii) do not
then have (or are not charged with
having) knowledge that such physical-
mental condition was caused in
whole or in part by acts or non-acts
of the alleged malpractitioners?
-----------------------------------------------------------------------
II. Is knowledge of the contents of
the medical doctor, hospital, etc.
records concerning the incompetent
minor patient which are of a
character as to be obtainable by, or
available to, the patient (or guardian) YES
but the contents of which are As to all Plaintiffs.
actually not known, imputed to:
(a) The parents and legal guardians
of the incompetent minor in their
own right?
(b) The parents and legal guardians
of the incompetent minor as next
friends in behalf of the minor? YES
As to all plaintiffs.
(c) The incompetent minor in his
own right?
-----------------------------------------------------------------------
III. Under the Florida doctrine of
tolling limitations by fraudulent
concealment, where there is knowledge by
the parents of the incompetent minor
of the physical-mental condition but
not the cause as set forth in I above,
does non-disclosure by one or more of NO
the alleged malpractitioners of possible As to all defendants.
causes of the such condition unaccompanied
by mispresentation toll the statute:
(a) as to all of the alleged malpractitioners?
(b) as to individual alleged malpractitioners
who did not participate in the asserted
'concealment'?
-----------------------------------------------------------------------
IV. Where there is knowlege by the
parents as set out in I and III above
but no request by them for such
information did the alleged malpractitioners,
each considered individually, have:
(a) a duty to make disclosure to the NO
parents of the records and the essential, As to all defendants.
material significant facts relating
to possible or likely causes of the
minor patient's condition and change
therein?
(b) If the answer to (a) is 'yes' what
is the consequence if any on the
statute of limitations?"
-----------------------------------------------------------------------
Of course we accept these answers as authoritative determinations of Florida law and as a result the case is now narrowed to a very small compass. 8 The defendants argue that the answers to Questions I and II require that we affirm the entire summary judgment entered below, because the Florida Court states unequivocally the Florida rule that the statute of limitations began to run once the plaintiffs knew of Nicholas' pitiful condition. For this purpose they did not have to know of the underlying cause or the asserted fact that such cause (or causes) were due to professional negligence. But the fact that the statute normally would start to run is not the answer since the real question is whether it was tolled.
The plaintiffs are charged with knowledge of Nicholas' condition 9 as of 1965 and with knowledge of the records as these were available to and obtainable by them. But the categorical answers to the certified questions do not require that we affirm in total the summary judgment for defendants on the limitations issue. The Florida Court after a careful review of the various views concerning fraudulent concealment and the tolling of the statute of limitations, see Louisell & Williams, Medical Malpractice, P 13.11 at 379 (1975), concluded that "the fiduciary, confidential relationship of physician-patient (imposes) on the physician a duty to disclose . . . known facts . . . ." Nardone v. Reynolds, supra, 333 So.2d at 39. Therefore the statute is tolled if there is this fiduciary relationship and a failure to disclose a cause known by the doctor or discoverable by him through efficient diagnosis. Id. Questions III and IV speak of possible or likely causes and the Florida opinion states unequivocally that there is no duty to disclose these or any causes based on conjecture. 10 But "(w)here an adverse condition is known to the doctor or readily available to him through efficient diagnosis, he has a duty to disclose and failure to do so amounts to a fraudulent withholding of facts, sufficient to toll the running of the statute." Id. 11
To the suggestion there should be a remand to determine this limited factual issue, the defendant professionals urge that even assuming nondisclosure of a known condition/cause, the tolling stopped at the time the relationship of patient-doctor expired. They base this on some quotations in the Florida opinion, including a Mississippi diversity case in from the Fifth Circuit, Sheets v. Burman, 5 Cir., 1963, 322 F.2d 277, 280, 12 which state that the duty to inform terminates when the formal doctor-patient relationship ends.
We do not read the opinion so strictly. Had the Florida Supreme Court thought so it would not have had any occasion to discuss the nature of this fiduciary duty. This is so because the Court expressly acknowledges that after July 1965, "none of the defendants had any further contact with the child," 333 So.2d at 29. Were the termination of the professional relationship the absolute bar urged, the case even on a duty to disclose known condition/cause basis would have been time barred in July 1969, making it wholly unnecessary for the Florida Court to struggle with timeliness of a suit filed in 1971.
We therefore, as a matter of Florida law, construe the Court's opinion as holding that with respect to limitations and tolling questions the consequences of the breach of the duty to disclose a condition/cause known by him during the continuance of doctor-patient relationship do not expire simply by reason of the termination of that consensual-contractual relationship. As a policy matter, this is especially desirable in cases such as this one in which the patient (or family) knows only of the condition, not the cause. To reason that on the termination of the doctor-patient relationship the patient is then free to consult others ignores several things, the first of which is that on the hypothesis of the disclosure rule, the doctor knows the condition/cause and the patient is entitled to be informed. Next, it may well be that no one subsequently can ever ascertain the condition/cause.
In summary, if the doctor during the existence of the relationship has or should have knowledge of the cause of the condition, the statute is tolled so long as the doctor fails to reveal his knowledge to the patient. 13
Several of the physician defendants also argue that even if the cause survives because of failure to inform,...
To continue reading
Request your trial
-
Springborn v. American Commercial Barge Lines, Inc.
...Miles, 656 F.2d 103, 106 n. 3 (5th Cir.1981); Guidry v. Kem Mfg. Co., 598 F.2d 402, 403, 405-06 (5th Cir.1979); Nardone v. Reynolds, 538 F.2d 1131, 1137 n. 16 (5th Cir.1976); reh'g denied, 546 F.2d 906 (1977); Jamison Co. v. Westvaco Corp., 526 F.2d 922, 934-35 (5th Cir.) reh'g denied, 530 ......
-
McClintock, In re
...Nardone v. Reynolds, 5 Cir. 1975, 508 F.2d 660, on certification, Fla., 1976, 333 So.2d 25, on receipt of answers to certification, 5 Cir. 1976, 538 F.2d 1131; West v. Caterpillar Tractor Co. Inc., 5 Cir. 1974, 504 F.2d 967, on certification, Fla., 1976, 336 So.2d 80, on receipt of answers ......
-
Gordon v. National Youth Work Alliance
...issue even if the facts remain in dispute after the parties have an opportunity to augment the record. See, e.g., Nardone v. Reynolds, 538 F.2d 1131, 1137-1138 (5th Cir. 1976). The obvious solution is to deny the motion for summary judgment without prejudice and then hold a limited evidenti......
-
Walko Corp. v. Burger Chef Systems, Inc.
...at 820-822, 82 L.Ed. at 1192-1194.48 Guaranty Trust Co. v. York, supra note 9 (state limitation periods applicable); Nardone v. Reynolds, 538 F.2d 1131 (5th Cir. 1976) (state accrual rules applicable); Roberts v. Berry, supra note 38, 541 F.2d at 610 (same); Moran v. H. W. S. Lumber Co., In......