Roberts v. Casey
| Decision Date | 21 April 1982 |
| Docket Number | No. 80-335,80-335 |
| Citation | 413 So.2d 1226 |
| Parties | Ann ROBERTS, a minor, Vivienne Roberts and Michael Roberts, individually, and as next friends and guardians of Ann Roberts, Appellants, v. James T. CASEY, et al., Appellees. |
| Court | Florida District Court of Appeals |
Shackow & McGalliard, Gainesville, and Larry Klein, West Palm Beach, for appellants.
Andrew G. Pattillo, Jr. and L. Edward McClellan of Pattillo, MacKay & McKeever, P.A., Ocala, for appellees, James T. Casey and Florida Physicians Insurance Reciprocal.
Edwin C. Cluster of Ayres, Cluster Curry, McCall & Briggs, P.A., Ocala, for appellees Marion County Hospital Dist., etc., and St. Paul Ins. Co.
No appearance for appellee The Florida Patient's Compensation Fund.
The appellants (Ann Roberts and her parents, suing on their own behalf and as her guardian) claim the trial court erred in granting a final summary judgment denying them any recovery against the appellees (Dr. Casey, Ann's pediatrician, Munroe Memorial Hospital and their respective liability carriers). The court ruled that the appellants' causes of action against the appellees are barred by the two year statute of limitations 1 and that section 768.44(6) of the medical mediation statute did not toll the running of the statute.
The record shows, without material dispute, that Ann Roberts was born an apparently healthy child on February 4, 1977, at Munroe Memorial Hospital. On April 5, 1977, Dr. Casey ordered her readmitted to the hospital. He treated her at Munroe for bacterial meningitis. After approximately one week, she was transferred to Shands Teaching Hospital in Gainesville because of the severity of her illness. While Ann was at Shands, Mrs. Roberts learned that her child had probably suffered severe brain damage. Mrs. Roberts also heard that other babies in the nursery at Munroe at about the time Ann was born had contracted infectious diseases, and that the hospital had been criticized for its lax visiting procedures in the maternity ward.
Mrs. Roberts stated in her deposition that she talked with Dr. Casey at the end of April, 1977, about bringing suit against the hospital. Dr. Casey said it was possible that Ann contracted the meningitis at Munroe, and he then advised her to consult an attorney.
The first question we shall consider is whether the tolling provision of chapter 768, relating to medical malpractice actions preserved appellants' cause of action. Section 768.44 provides in relevant part:
(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.
(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.
A summary of the medical mediation proceedings in this case is as follows:
February 3, 1979 Medical mediation claim filed. Referee expanded time for final hearing to 6 months.
July 6, 1979 Hearing. The parties appeared but presented no evidence. They stipulated it was a valid "start-up" hearing, and agreed to continue the hearing beyond 6 months.
October 29, 1979 Final hearing scheduled but not held.
October 30, 1979 In response to motions made by appellees, referee terminated the proceedings "nunc pro tunc" effective August 3, 1979, because of lack of jurisdiction since no valid "start-up" hearing was held prior to August 3, 1979.
December 18, 1979 Suit filed in circuit court.
The question here is when did the sixty day period referred to in subsection (4) begin to run. Appellees argue that it began on August 3, 1979 because no valid "start-up" hearing was held.
It is clear that jurisdiction of the mediation panel terminates within six months unless there is a valid "start-up" hearing. This jurisdictional requirement cannot be altered by stipulation of the parties. Sanchez v. Wimpey, 409 So.2d 20 (Fla.1982); Aldana v. Holub, 381 So.2d 231 (Fla.1980); Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978). Thus, the parties' stipulation that it was a valid "start-up" hearing was of no effect.
There being no valid "start-up" hearing within six months of February 3, 1979, the date the mediation claim was filed, the jurisdiction of the panel terminated on August 3, 1979. The appellants then had either sixty days or the time remaining under the applicable statute of limitations, whichever was greater, within which to file suit. The trial court found that the acts and omissions constituting the alleged negligence occurred and the causes of action accrued on or before April 30, 1977, the time that appellants were advised by Dr. Casey to consult an attorney. Therefore, the complaint, which was filed December 18, 1979, was well beyond the two year period plus the six months during which the statute was tolled.
This brings us to the next question. Was summary judgment improper because there remained a question of fact as to when the appellant should have discovered the incident giving rise to the malpractice claim?
The statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). This occurs when the plaintiff has notice of either the negligent act which causes the injury or the existence of an injury which is a consequence of the negligent act. Almengor at 894. Here, appellants discovered in late April, 1977, that their child's condition may have been caused by a negligent act. We hold that the statute of limitations began to run against both the hospital and Dr. Casey at this time. The fact that appellants were not aware that Dr. Casey's treatment may have contributed to the child's condition does not alter the result as appellants had been put on notice of an invasion of their legal rights at this time. Thus, the entry of summary judgment was not improper and we affirm.
I respectfully dissent in this case on two grounds: that the medical malpractice two year statute of limitations 1 had not run because it was tolled by the provisions of section 768.44(4), Florida Statutes (1977), and to refuse to so hold violates the appellants' constitutional rights of access to the courts of this state; 2 and further, that as to Dr. Casey, the summary judgment was not properly entered because the record does not clearly and as a "matter of law" show when the appellants were aware of his alleged negligent treatment of Ann, nor the alleged increased damage to her resulting from it.
The Medical Mediation Act, Chapter 768, was declared unconstitutional prospectively only, in Aldana v. Holub, 381 So.2d 231 (Fla.1980). In Aldana, our Supreme Court stated "It simply offends due process to countenance a law which confers a valuable legal right, but then permits that right to be capriciously swept away on the wings of luck and happenstance." 381 So.2d at 236. I would add that due process is also offended by a law which is so contradictory and confusing it successfully disguises when a constitutional right has been reborn to such an extent that reasonably knowledgable and diligent litigants cannot ascertain the life expectancy of their rights to redress in the courts.
On its face, the provisions of section 768.44(3) state that the jurisdiction of the mediation panel expires: "If no hearing on the merits is held within 10 months of the date the claim is filed ...." It has no six months "expiration" time for proceedings which do not begin within six months after the claim is filed, although the section says: "Such extension shall not exceed 6 months from the date the claim is filed" (Referring to the power of the judicial referee to extend the time to begin the hearing beyond 120 days).
The ten month provision is keyed to section 768.44(4), which provides:
The filing of the claim shall toll any applicable statute of limitations, and such statute of limitation shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is other-wise terminated in which to file a complaint in circuit court. (Emphasis supplied).
Prior to the very recent Florida Supreme Court decision Sanchez v. Wimpey, 409 So.2d 20 (Fla.1982), it was not at all clear that failure to hold a hearing in six months automatically terminated the jurisdiction of the panel, so as to commence the running of the sixty days to file a cause of action in court. Numerous cases dealt with the plaintiffs' rights to cut off the mediation proceedings when the six months period expired without a hearing. 3 Contrary to the statement in the majority opinion and the cases cited by it, Aldana and Diggett...
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