Schafer v. Lehrer, 84-2538
| Decision Date | 16 October 1985 |
| Docket Number | No. 84-2538,84-2538 |
| Parties | 10 Fla. L. Weekly 2357 Kelli SCHAFER, Appellant, v. Theodore LEHRER, Appellee. |
| Court | Florida District Court of Appeals |
Robert J. Bogdanoff of Terry M. Rosenblum, P.A., Hollywood, for appellant.
Larry E. Metz and John S. Neely, Jr. of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.
Kelli Schafer appeals from a final summary judgment for defendant, Dr. Theodore Lehrer, in this medical malpractice action. The trial court found the plaintiff's suit was barred by the applicable statute of limitations, Section 95.11(4), Florida Statutes (1983), because she more than two years before filing suit had actual knowledge of the incident giving rise to her cause of action or of the injury which was the consequence of the malpractice. We reverse.
In her complaint, filed on August 2, 1983, Schafer alleges that between 1977 and 1980, Lehrer treated her for various obstetrical and gynecological problems and within that period aborted her pregnancy. She states that the doctor, when performing the abortion, negligently lacerated her cervix and/or failed to properly diagnose and treat the laceration and concealed from her the nature of her condition. Further, she asserts that she did not know of, nor could she have discovered, the malpractice until July 1982.
Dr. Lehrer argues that the plaintiff's answer to the following pretrial interrogatory conclusively demonstrates her actual knowledge of the negligent act as of August 1980.
Q. On what date was the physician-patient relationship between you and the defendant terminated?
A. August 1980.
Q. If terminated by you, state ... [t]he reason for the termination of the relationship.
A. When I found out what the doctor had done to me and that he never told me about it.
We find, however, that Schafer's affidavit in opposition to the motion for summary judgment provides a reasonable explanation of her interrogatory answer and, at the least, raises an issue of fact regarding when she learned of the negligent act. She explained that in answering the interrogatory she
meant by terminating my relationship with Dr. Lehrer that as it turned out, I last saw him in August 1980; I did not mean that in August of 1980 I had decided never to see him again. I decided that I would not use Dr. Lehrer again after I was told he knew about the hole in my cervix but had not told me of it. This occurred after Dr. Sterghos finally obtained his medical records regarding me in 1982.
Dr. Lehrer alternatively argues that his patient had actual knowledge of the injury alleged to be the consequence of the malpractice not later than October 31, 1980, when she was advised by another physician that she had a laceration of the posterior portion of her cervix which was surrounded by inflammatory tissue. Although there is no dispute that Schafer was then advised of her lacerated cervix, it does not necessarily follow that she knew that the laceration existed at the time Lehrer treated her or that she knew Lehrer was negligent in causing or failing to treat the laceration. Knowledge of a physical...
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