Pergrem v. Horan
| Decision Date | 22 March 1996 |
| Docket Number | No. 95-1169,95-1169 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D730 Debra PERGREM, Appellant, v. William HORAN, M.D., Appellee. |
Appeal from the Circuit Court for Putnam County, Arthur W. Nichols, III, Judge.
Richard R. Whitson and Mitchel Novas of Whitson and Novas, Holly Hill, for Appellant.
Robert M. Loehr of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, Amicus Curiae for Academy of Florida Trial Lawyers, in support of Appellant.
John B. Fricke, Jr., and Brian E. Currie, Jacksonville, for Appellee.
Pergrem appeals from a final summary judgment entered against her in a medical malpractice case. The trial judge ruled that Pergrem's complaint was not timely filed within the two year statute of limitations, 1 and the statute's tolling or extension provisions. 2 We disagree and reverse.
The facts in this case are not in dispute. Dr. Horan treated Pergrem at HCA Putnam Community Hospital in Palatka in 1992. She complained of lower right abdominal pain, nausea and vomiting. Horan prescribed antibiotics for her, but she continued to have pain through the date of her discharge from the hospital on October 2, 1992.
Pergrem proceeded directly to Shands (the hospital at the University of Florida Medical School in Gainesville, Florida), where doctors performed surgery on her on October 7, 1992. The surgery involved removing a portion of her intestinal tract and inserting an ileostomy into the exterior portion of her abdominal wall. It was at this point that Pergrem learned of her injury and Horan's possible negligence. The parties agree that the statute of limitations began to run on October 7, 1992.
Pergrem's theory was that Horan was negligent for having failed to perform diagnostic tests and studies to confirm her diagnosis of diverticulitis, and that he failed to order appropriate consultations. She notified Horan of her intent to sue pursuant to the requirements of section 766.106(2). That statute provides:
After completion of presuit investigation ... for medical malpractice, a claimant shall notify each prospective defendant....
The notice was dated December 9, 1993, and was received on December 13, 1993.
Horan rejected Pergrem's claim by a letter dated March 9, 1994, received by Pergrem on March 10, 1994. Section 766.106(3)(a) provides that no suit can be filed for a period of ninety days after the notice of intent is mailed, while the investigation required by the statute is proceeding. At or before the end of the ninety day period, the claimed-against party, or its insurer, must reject the claim, make a settlement offer, or admit liability and offer to arbitrate damages. 3 The rejection letter in this case was timely.
Section 766.106(4) further provides that during the ninety day settlement investigation period, the statute of limitations is tolled as to all potential defendants. Upon receiving notice of rejection, the claimant "shall have sixty days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit."
The Florida Supreme Court in Tanner v. Hartog, 618 So.2d 177 (Fla.1993), stated that this means that from the date of notice of intent, a prospective plaintiff has ninety days plus either sixty days or the time remaining in the statute of limitations, whichever is greater. If notice is filed shortly before the statute has run, the plaintiff has ninety days to negotiate, and sixty days if the claim cannot be settled, within which to file suit. But if the notice of intent is mailed well in advance of the end of the statute of limitations period, so that the ninety days and sixty days fall within it, the claimant must file suit before the statute of limitations runs.
In this case, Pergrem would have faced the close of the two year statute of limitations on October 7, 1994. She had no extension under section 766.106(4) since the ninety day period plus the sixty day period ended in May of 1994, well before the expiration of the statute of limitations. The Florida Supreme Court said in Tanner that time periods are not simply added on to the end of the limitations...
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Hankey v. Yarian
...timely filed, and the district court affirmed. See Hankey, 719 So.2d at 988. The district court in Hankey relied on Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996), wherein three years after our decision in Tanner v. Hartog, 618 So.2d 177 (Fla.1993), the Fifth District concluded that u......
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Rothschild v. NME Hospitals, Inc., 97-1681
...period for additional investigation is tacked onto the end of the statute of limitations period as an extension. See Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996). 1 It is not a tolling provision, and it does not run simultaneously with the tolling period of section 766.106(4). See K......
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Coffaro v. HILLSBOROUGH CTY. HOSP. AUTH., No. 2D98-4849
...limitations period as an extension." Rothschild v. NME Hosps., Inc., 707 So.2d 952, 953 (Fla. 4th DCA 1998). See also Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996).3 At the time Coffaro's notice of intent was received, there was less than one month remaining in the regular limitation......
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Hankey v. Yarian, 98-543
...this action was timely filed. If it was not, it is untimely. We conclude that under Tanner and our prior decision in Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996), it was not and that the suit was The Florida Supreme Court, in Tanner, held that subsection (4) means that from the date......
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Florida medical malpractice and the statute of limitations: an overview of select statutory provisions and case law governing medical malpractice litigation.
...Bogorff, 583 So. 2d 1000 (Fla. 1991). (32) Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d D.C.A. 1991). (33) Pergrem v. Horan, 669 So. 2d 1150 (5th D.C.A. (34) Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000) (abrogating Pergrem in that regard). (35) Id. (36) Id. (37) This date is reach......