Stella v. Ash, No. 80-2335

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation425 So.2d 122
PartiesNicholas A. STELLA, as personal representative of the estate of Cynthia Lee Stella, deceased, etc., et al., Appellants, v. Terrence M. ASH, D.C., Appellee.
Docket NumberNo. 80-2335
Decision Date28 December 1982

Page 122

425 So.2d 122
Nicholas A. STELLA, as personal representative of the estate of Cynthia Lee Stella, deceased, etc., et al., Appellants,
v.
Terrence M. ASH, D.C., Appellee.
No. 80-2335.
District Court of Appeal of Florida,
Third District.
Dec. 28, 1982.
Rehearing Denied Feb. 2, 1983.

Page 123

Horton, Perse & Ginsberg and Edward A. Perse, Carroll, Halberg & Meyerson, Miami, for appellants.

Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, Miami, for appellee.

Before BASKIN and DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

The trial court, finding that the appellants' wrongful death action was limitations-barred under Section 95.11(4)(b), Florida Statutes (1979), entered summary judgment for Dr. Ash. We reverse upon holdings that (1) a wrongful death action, when, as here, brought within two years from the time of death of the injured party, is not limitations-barred, Perkins v. Variety Children's Hospital, 413 So.2d 760 (Fla. 3d DCA 1982); see also Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982); and (2) even if, arguendo, the action were required to be brought within two years from the time the incident giving rise to the action was discovered or should have been discovered with the exercise of due diligence, the fact that Mrs. Stella's malignancy was correctly diagnosed two years and several days prior to the commencement of the action does not conclusively establish as a matter of law that she then should have known that Dr. Ash misdiagnosed her condition in 1975, since Mrs. Stella's knowledge of her true condition is but a factor among others in evaluating whether she should have discovered the defendant's asserted malpractice. Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Schalm v. Mount Clemens General Hospital, 82 Mich.App. 669, 267 N.W.2d 479 (1978).

Reversed and remanded.

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4 practice notes
  • Ash v. Stella, No. 63347
    • United States
    • Florida Supreme Court
    • 11 Octubre 1984
    ...Halberg & Meyerson, Miami, for respondent. PER CURIAM. We have for review a decision of a district court of appeal, Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982), which is in conflict with decisions of other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Page 1378......
  • Kaufman v. Stephen Cahen, P.A., Nos. 86-753
    • United States
    • Court of Appeal of Florida (US)
    • 12 Mayo 1987
    ...wrongful death which allegedly results from medical malpractice. See Lipshaw v. Pinosky, 442 So.2d 992 (Fla. 3d DCA 1983); Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982). Under this law, Kaufman's claim could have been filed as late as November 16, 1985, some time after the firm and Chasin......
  • Lipshaw v. Pinosky, Pinosky, P.A., Nos. 81-2263
    • United States
    • Florida District Court of Appeals
    • 8 Noviembre 1983
    ...statute of limitations for wrongful death actions, whether that statute be Section 95.11(4)(b) Florida Statutes (1981), Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982); Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979), or Section 95.11(4)(d......
  • Stella v. Ash, No. 80-2335
    • United States
    • Florida District Court of Appeals
    • 4 Diciembre 1984
    ...Court of Appeal of Florida, Third District. December 4, 1984. WHEREAS, the judgment of this court was entered on December 28, 1982 (425 So.2d 122) reversing the summary judgment of the Circuit Court for Dade County, Florida in the above styled cause; WHEREAS, on review of this court's judgm......
4 cases
  • Ash v. Stella, No. 63347
    • United States
    • Florida Supreme Court
    • 11 Octubre 1984
    ...Halberg & Meyerson, Miami, for respondent. PER CURIAM. We have for review a decision of a district court of appeal, Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982), which is in conflict with decisions of other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Page 1378......
  • Kaufman v. Stephen Cahen, P.A., Nos. 86-753
    • United States
    • Court of Appeal of Florida (US)
    • 12 Mayo 1987
    ...wrongful death which allegedly results from medical malpractice. See Lipshaw v. Pinosky, 442 So.2d 992 (Fla. 3d DCA 1983); Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982). Under this law, Kaufman's claim could have been filed as late as November 16, 1985, some time after the firm and Chasin......
  • Lipshaw v. Pinosky, Pinosky, P.A., Nos. 81-2263
    • United States
    • Florida District Court of Appeals
    • 8 Noviembre 1983
    ...statute of limitations for wrongful death actions, whether that statute be Section 95.11(4)(b) Florida Statutes (1981), Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982); Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979), or Section 95.11(4)(d......
  • Stella v. Ash, No. 80-2335
    • United States
    • Florida District Court of Appeals
    • 4 Diciembre 1984
    ...Court of Appeal of Florida, Third District. December 4, 1984. WHEREAS, the judgment of this court was entered on December 28, 1982 (425 So.2d 122) reversing the summary judgment of the Circuit Court for Dade County, Florida in the above styled cause; WHEREAS, on review of this court's judgm......

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