Nolen v. Sarasohn, 78-2393

• Decision Date: 22 January 1980
• Docket Number: No. 78-2393,78-2393
• Citation: 379 So.2d 161
• Court: Florida District Court of Appeals
• Parties: Coy 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 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 statute of limitations was applicable. Section 95.11(6), Florida Statutes (1971). ¹ From July 1972 through December 31, 1974, there was a two-year limitation. Section 95.11(6), Florida Statutes (1973). ² A new limitation statute was enacted and remained in effect from January 1 May 19, 1975. Section 95.11(4)(a), Florida Statutes (Supp.1974). ³ Finally, there is a currently worded statute effective May 20, 1975. Section 95.11(4)(b), Florida Statutes (1975). ⁴

It is unclear which of the above statutes was relied upon by the defendants in support of their motion for summary judgment and by the trial court in the entry of final summary judgment. Nevertheless, regardless of which statute may be applicable, the general principle of law is that the running of the statute is tolled until the claimant, through the exercise of reasonable diligence, is put on notice as to either the negligent act or the injury caused thereby. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). In fact, this principle of law is embodied in the following language of the last three statutes cited above: ". . . from the time the cause of action is discovered or should have been discovered with the exercise of due diligence."

A perusal of the record convinces us that contrary to the contention of the defendant association, there remains a disputed question of fact as to whether Nolen knew or through the exercise of due diligence should have discovered that his 1968 x-ray had been misinterpreted by Dr. Sarasohn. First, although Dr. Fabian informed him of the abnormality in 1973, the doctor did not tell him that the abnormality appears in his 1968 x-ray. Second, in his affidavit Nolen stated that he did not understand the 1973 x-ray reports which contained many...