Rodriguez v. Saenz, 5D03-1902.

• Decision Date: 20 February 2004
• Docket Number: No. 5D03-1902.,5D03-1902.
• Citation: 866 So.2d 184
• Parties: Delia RODRIGUEZ and Frank Rodriguez, Appellants, v. Carlos B. SAENZ, M.D., and Florida Heart Group, Appellees.
• Court: Florida District Court of Appeals

866 So.2d 184

Delia RODRIGUEZ and Frank Rodriguez, Appellants, v. Carlos B. SAENZ, M.D., and Florida Heart Group, Appellees.

No. 5D03-1902.

District Court of Appeal of Florida, Fifth District.

February 20, 2004.

Gregorio A. Francis of Morgan, Colling & Gilbert, P.A., Orlando, for Appellants.

Martin B. Unger and Ernest J. Myers of Unger, Acree, Weinstein, Marcus, Merrill, Kast & Metz, P.L., Orlando, for Appellees.

MONACO, J.

This appeal from a final summary judgment in favor of the defendants below causes us to examine an issue regarding the commencement of the statute of limitations period for medical malpractice actions brought pursuant to Chapter 766, Florida Statutes. Because we conclude that the date of the commencement of the statute of limitations is, under the facts of this case, an issue of fact that should be left to the consideration of a jury, we reverse.

One of the appellees, Dr. Saenz, began treating appellant Delia Rodriguez, a 62-year old woman with two years of high school education, in February of 1999, because an electrocardiogram ("EKG") that she was given showed certain abnormalities. Mrs. Rodriguez had a family history of heart disease, and had smoked cigarettes for 48 years. Dr. Saenz is a physician specializing in cardiology in a professional association named the Florida Heart Group ("FHG"), the other appellee in this case. Mrs. Rodriguez had been referred to FHG for a cardiac evaluation because of the abnormal EKG, and Dr. Saenz was assigned to perform the evaluation. The EKG that was the basis for the referral indicated to Dr. Saenz that Mrs. Rodriguez had suffered a heart attack at some earlier time.

During her initial visit, Dr. Saenz ordered another EKG and a stress test. As both tests were abnormal, and confirmed that Mrs. Rodriguez had, in fact, experienced a myocardial infarction, Dr. Saenz prescribed medication, but did not prescribe for her, or discuss with her, a heart catheterization. His notes indicate, however, that she was symptomatically improved while taking the prescribed medications.

On April 2, 1999, Mrs. Rodriguez was admitted to Florida Hospital, having endured a second heart attack, and cardiac bypass surgery was performed on her the next day. Mrs. Rodriguez continued her course of treatment with Dr. Saenz for some time subsequent to her second heart attack, but ceased doing so on November 8, 1999. She testified on deposition that she continued to have confidence in Dr. Saenz after her second heart attack, but that her confidence in him ceased in October or November of 1999.

At about that time Mrs. Rodriguez had a conversation with two of her relatives regarding the care afforded her by Dr. Saenz. During this conversation, her daughter and sister (who also had a history of cardiac disease), suggested to Mrs. Rodriguez that based on her previous test results, Dr. Saenz should have performed a cardiac catheterization, and that her second heart attack would have been prevented had he done so. Mrs. Rodriguez testified in her deposition that this conversation was the first time she suspected Dr. Saenz of being negligent. She additionally testified that it was her belief that Dr. Saenz was not interested in her case because she was unable to afford insurance, and that his course of treatment was geared around her lack of insurance. She said that she understood her condition to be serious because of her previous heart attack, and that prior to her second heart attack her condition was deteriorating, and the tightness in her chest was worsening.

Mrs. Rodriguez filed a petition to extend the statute of limitations pursuant to section 766.104(2), Florida Statutes (2001), on January 17, 2001. The appellees, Dr. Saenz and FHG, were served with a Notice of Intent by Mrs. Rodriguez and her husband on October 1, 2001. Three weeks later Dr. Saenz and FHG responded to the Notice of Intent claiming they would investigate the claim, but felt that the statute of limitations had expired. They requested an extension of the ninety-day presuit investigation period, but ultimately denied the claim on February 1, 2002. Mr. and Mrs. Rodriguez filed their complaint seeking damages for medical malpractice on March 12, 2002.

After the complaint was amended Dr. Saenz and FHG answered and raised the statute of limitations as an affirmative defense. The depositions of Mrs. Rodriguez and Dr. Saenz were thereafter taken, and Dr. Saenz and FHG then moved for summary judgment, asserting that there was no genuine issue of material fact that the statute of limitations had run, and that they were, therefore, entitled to a judgment as a matter of law. Neither party filed affidavits in support of or against summary judgment. Rather, both sides relied on the deposition transcripts of Ms. Rodriguez and Dr. Saenz to support their respective positions with respect to the motion.

Dr. Saenz and FHG argued at the motion hearing that Mrs. Rodriguez had to have known of the possibility of medical negligence either when she had her second heart attack, or when she had her next office visit with Dr. Saenz. Mr. and Mrs. Rodriguez argued that the actual date Mrs. Rodriguez was deemed to have knowledge of the possibility of medical malpractice was a question of fact for a jury to decide, and that summary judgment was not appropriate.

The trial court granted the motion of Dr. Saenz and FHG for summary judgment. In its order the trial court analyzed the arguments of the parties, compared it to the case law, and concluded that the defense of statute of limitations was well taken. The order stated:

In sum, there is no genuine factual dispute about when the statute of limitations began to run. It started on April 2, 1999, and ran out on July 1, 2001.¹ There is no reason attributable to the nature of the injury, treatment, or available information that would excuse the filing of the notice of intent to sue more than two months after the limitations period expired. Since there are no material facts in dispute and Plaintiffs' position is legally unsupportable, Defendants are entitled to summary judgment.

Mr. and Mrs. Rodriguez timely appealed.

The path of the law around summary judgment is well beaten, and needs little explication. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact, and that the movant is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); ...