Nolen v. Sarasohn, No. 78-2393

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore HAVERFIELD, C. J., SCHWARTZ; PER CURIAM
Citation379 So.2d 161
Docket NumberNo. 78-2393
Decision Date22 January 1980
PartiesCoy L. NOLEN, Appellant, v. Sylvan H. SARASOHN, Miller, Sarasohn, Waldman & Hillman, P. A., and Miller, Sarasohn, Waldman, Hillman & Fabian, P. A., Appellees.

Page 161

379 So.2d 161
Coy L. NOLEN, Appellant,
v.
Sylvan H. SARASOHN, Miller, Sarasohn, Waldman & Hillman, P. A., and Miller, Sarasohn, Waldman, Hillman & Fabian, P. A., Appellees.
No. 78-2393.
District Court of Appeal of Florida, Third District.
Jan. 22, 1980.

Sinclair, Louis, Siegel & Heath and Paul Siegel, Miami, for appellant.

Adams & Ward and Robert C. Ward, Miami, for appellees.

Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.

PER CURIAM.

Coy Nolen, the plaintiff, appeals a summary judgment for the defendant professional association on the ground that his action for medical malpractice is barred by the statute of limitations.

Coy Nolen was hospitalized for a seizure disorder on September 4, 1968, and an x-ray study known as an intravenous pyleogram was ordered. The test was performed on September 6 by Dr. Sarasohn, whose report in medical terms stated that there was nothing out of the ordinary with regard to the bones seen on the x-ray. This report was incorrect as the x-ray showed an abnormality of the spine's bone structure which raises a suspicion of a tumor. On March 22, 1973, Nolen was hospitalized again for seizure disorder and another intravenous pyleogram was performed on March 23 by Dr. Carl Fabian, an associate of Dr. Sarasohn (in the defendant professional association). Dr. Fabian noted an abnormality and after examining the 1968 x-ray it was found by him to be present at that time. Nolen was told of the abnormality, but was never told that the same abnormality appeared on his 1968 x-ray. He underwent surgery for removal of the tumor (which was about 90% Removed) and upon his release was immediately admitted to the VA Hospital for radiation therapy. Thereafter, Nolen became paraplegic as a result of the inability to completely remove the spinal tumor. In February 1975 he consulted a lawyer as to whether he had a cause of action against the neurosurgeon who performed the April 1973 operation for removal of the spinal cord tumor. Nolen was informed he had no cause of action against the neurosurgeon; but in December 1975 it was suggested that he may have a cause of action for the

Page 162

missed diagnosis of the 1968 x-ray. Subsequently, in January 1977 Nolen filed the instant medical malpractice action against Dr. Sarasohn and his professional association, Miller, Sarasohn, Waldman & Hillman, and its successor in interest, Miller, Sarasohn, Waldman, Hillman & Fabian. The association moved for summary judgment on the ground that Nolen's cause of action accrued in March 1973 at the time he underwent the surgery for removal of the tumor and, therefore, the filing of the instant cause of action in January 1977 was beyond the two-year time limit prescribed in Section 95.11, Florida Statutes. After hearing argument of counsel, the trial court entered summary judgment for the association. Nolen appeals.

At the onset, we note that the statute of limitations with regard to medical malpractice was amended several times from 1968 through 1975 (when Nolen contends he first was made aware that the 1968 x-ray was incorrectly read). Prior to July 1, 1972, a four-year...

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13 practice notes
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...have known of the alleged negligence or of the ensuing injury. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Page 1226 Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980). Substantive questions pertaining to the merits of the asserted claims must await determination of the limitations Secti......
  • Van Dusen v. Southeast First Nat. Bank of Miami, No. 84-1246
    • United States
    • Court of Appeal of Florida (US)
    • October 29, 1985
    ...to a cause of action." Kelley v. School Board of Seminole County, Page 92 435 So.2d 804, 806 (Fla.1983); see also Nolen v. Sarasohn, 379 So.2d 161, 162-63 (Fla. 3d DCA 1980). An action for breach of fiduciary duty is founded upon a statutory liability, § 733.609, Fla.Stat. (1983), and ......
  • Wimpey v. Sanchez, No. 79-1621
    • United States
    • Court of Appeal of Florida (US)
    • July 22, 1980
    ...dismissal of the Wimpeys' complaint on the ground that the applicable statute of limitations had run was precluded. 9 Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA......
  • Calder v. Uwanawich, No. 83-1151
    • United States
    • Florida District Court of Appeals
    • April 24, 1984
    ...this issue must be left for the trier of fact to decide. See Burnside v. McCrary, 382 So.2d 75 (Fla. 3d DCA 1980); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Rosen v. Sparber, 369 So.2d 960 (Fla. 3d DCA 1978); Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974). But see Matthews......
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13 cases
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...have known of the alleged negligence or of the ensuing injury. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Page 1226 Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980). Substantive questions pertaining to the merits of the asserted claims must await determination of the limitations Secti......
  • Van Dusen v. Southeast First Nat. Bank of Miami, No. 84-1246
    • United States
    • Court of Appeal of Florida (US)
    • October 29, 1985
    ...to a cause of action." Kelley v. School Board of Seminole County, Page 92 435 So.2d 804, 806 (Fla.1983); see also Nolen v. Sarasohn, 379 So.2d 161, 162-63 (Fla. 3d DCA 1980). An action for breach of fiduciary duty is founded upon a statutory liability, § 733.609, Fla.Stat. (1983), and ......
  • Wimpey v. Sanchez, No. 79-1621
    • United States
    • Court of Appeal of Florida (US)
    • July 22, 1980
    ...dismissal of the Wimpeys' complaint on the ground that the applicable statute of limitations had run was precluded. 9 Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA......
  • Menendez v. Public Health Trust of Dade County, No. 89-2332
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 1990
    ...have constructive notice of the contents of medical records that disclose a possibly negligent act. Nardone; compare Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980) (knowledge of contents of medical records not imputed to patient when records contain many technical terms that an ordinar......
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