Phillips v. Mease Hosp. and Clinic, s. 83-411

• Decision Date: 10 February 1984
• Docket Number: Nos. 83-411,83-834 and 83-969,s. 83-411
• Parties: Ethel M. PHILLIPS, et ux., Appellants, v. MEASE HOSPITAL AND CLINIC, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1058

445 So.2d 1058

Ethel M. PHILLIPS, et ux., Appellants, v. MEASE HOSPITAL AND CLINIC, et al., Appellees.

Nos. 83-411, 83-834 and 83-969.

District Court of Appeal of Florida Second District.

Feb. 10, 1984.

Rehearings Denied March 2, 1984.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellants.

John P. Frazer of Frazer & Hubbard, P.A., Dunedin, for appellee Mease Hosp. and Clinic.

Paula M. Walsh of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for appellee Emerson.

Rodney W. Morgan of Shear, Newman & Hahn, P.A., Tampa, for appellee Fla. Patients Compensation Fund.

CAMPBELL, Judge.

This is an appeal of the trial court's dismissal of a medical malpractice action against appellees Mease Hospital and Clinic (Mease), James David Emerson, M.D. (Emerson), and the Florida Patients Compensation Fund, pursuant to section 95.11(4)(b), Florida Statutes (1981). The summary judgment in favor of Florida Patients Compensation Fund is also appealed. We reverse the decision of the lower court.

Appellants, Ethel M. Phillips and Clyde Phillips, her husband, filed their complaint on September 16, 1982, and alleged that appellees Mease and Emerson treated Mrs Phillips for an undisclosed condition for which she was discharged from appellee Mease on December 7, 1976. Appellants further allege that appellees Mease and Emerson negligently administered a variety of drugs to Mrs. Phillips which caused her to suffer eighth cranial nerve damage, hearing loss, loss of balance, kidney damage, and other costs and damages. Appellants allege that Mrs. Phillips was suffering from these injuries when she was discharged from Mease, and that she was readmitted for those conditions on December 9, 1976. Appellants, in an obvious attempt to extend the statute of limitations from two years to seven years, allege that appellees fraudulently and intentionally concealed from appellants the fact that Mrs. Phillips' problems were caused by the administration of antibiotics by appellees Mease and Emerson. Appellants then allege they first became aware of the alleged negligence and fraud in May 1982, when they read of another medical malpractice action based on the negligent administration of the same drugs Mrs. Phillips received.

Appellees filed a motion to dismiss the complaint on the ground that the action was barred on the face of the complaint by the two year statute of limitations in section 95.11(4)(b). The trial court granted the motion to dismiss and stated:

[P]laintiffs allege not that the injury was concealed but that the alleged causation and/or negligence was concealed and it appearing to the Court that the exception to the normal four year Statute of Limitations is based on concealment of the injury and not lack of knowledge of causation and/or negligence and it further appearing, based on the Plaintiffs' Complaint that the knowledge of this injury was observable in December 1976....

Thus, the trial court dismissed the action on the basis that the limitations period began to run when Mrs. Phillips discovered her physical injuries. Subsequently, a summary judgment was entered in favor of the Florida Patients Compensation Fund, based on the dismissal of the action against the other appellees.

We find that the trial judge's order, as it pertained to appellants' original complaint, was right for the wrong reason. In appellants' attempt to extend the limitation period in their original complaint, they allege that they had knowledge of Mrs. Phillips' condition on her discharge from Mease on December 7, 1976, and her readmission on December 9, 1976. They do not allege how long she was hospitalized or treated after the readmission. They also do not allege how, when or for how long appellees Mease and Emerson fraudulently and intentionally concealed the alleged true cause of Mrs. Phillips' condition, except that it is implied that it occurred on the readmission on December 9, 1976. Therefore, on the face of the original complaint, there was nothing except an implication to extend the limitations period beyond four years from December 9, 1976; there is no allegation as to how long appellants continued to rely upon the implied representations of appellees on December 9, 1976.

Although appellants' original complaint was defective, we find that appellants' proffered amended complaint should survive either a motion to dismiss or summary judgment at this time. The trial judge's order directed to the motion to dismiss of appellees Mease and Emerson contained a somewhat unusual provision. While the order specifically granted the motion to dismiss with prejudice, it also provided that:

[T]he Court will consider a Motion for Rehearing with an attached Amended Complaint that is not inconsistent with the factual pleadings already enunciated by the Plaintiffs in their initial Complaint. Upon receipt of the Motion for Rehearing with the attached Amended...