Tanner v. Hartog

Decision Date13 May 1993
Docket NumberNo. 79390,79390
Citation618 So.2d 177
Parties18 Fla. L. Weekly S281 Phyllis Kaye TANNER, etc., et al., Petitioners, v. Ellie HARTOG, M.D., et al., Respondents.
CourtFlorida Supreme Court

Kennan George Dandar, Dandar & Dandar, P.A., Tampa, for petitioners.

Philip D. Parrish and Robert M. Klein, Stephens, Lynn, Klein & McNicholas, P.A., Miami, for respondent Ellie M. Hartog.

Jerry L. Newman, Marilyn Drivas and Thomas M. Hoeler, Shear, Newman, Hahn

& Rosenkranz, P.A., Tampa, for respondent Alberto DuBoy.

Kevin C. Knowlton and Stephen R. Senn, Peterson, Myers, Craig, Crews, Brandon & Puterbaugh, P.A., Lakeland, for respondent Lakeland Regional Medical Center, Inc.

Marguerite H. Davis, Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, for amicus curiae Fla. Defense Lawyers Ass'n.

Joel D. Eaton and Joel S. Perwin, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for amicus curiae Academy of Florida Trial Lawyers.

GRIMES, Justice.

We review Tanner v. Hartog, 593 So.2d 249 (Fla. 2d DCA 1992), in which the court certified the following as a question of great public importance:

WHETHER, AS A MATTER OF LAW, THE STILLBIRTH OF A CHILD IS SUCH AN OBVIOUS INJURY AS TO PLACE A PLAINTIFF ON NOTICE OF THE POSSIBLE INVASION OF THE PLAINTIFF'S LEGAL RIGHTS TO COMMENCE THE LIMITATIONS PERIOD UNDER SECTION 95.11(4)(b), FLORIDA STATUTES (1989).

17 Fla.L.Weekly D433 (Fla. 2d DCA Jan. 31, 1992). 1 We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

Mr. and Mrs. Tanner filed a medical malpractice action against Dr. Hartog, Dr. Duboy, and Lakeland Regional Medical Center (health-care providers) arising out of the birth of their stillborn child. According to the complaint, the doctors examined Mrs. Tanner on March 31, 1988, and then sent her to the hospital for testing. The following morning the baby was delivered stillborn at the hospital. The complaint alleged that in light of the testing and Mrs. Tanner's condition, the doctors and the medical staff at the hospital were negligent in failing to promptly perform a delivery by caesarean section at a time when the child could have been saved. The complaint alleged that the Tanners neither knew nor should have known "that the actions and inactions of the defendants fell below the standard of care recognized in the community" until December 29, 1989.

The notice of intent to initiate medical malpractice litigation required by section 766.106, Florida Statutes (1987), was filed on February 12, 1990. The malpractice suit was filed on August 1, 1990. Upon motion of the health-care providers, the trial court dismissed the complaint as barred under the two-year statute of limitations. Section 95.11(4)(b), Fla.Stat. (1987). The district court of appeal affirmed the dismissal upon the rationale that the statute of limitations began running when the Tanners became aware of the stillbirth on April 1, 1988.

The pivotal issue in this case is when the statute of limitations began to run. The Tanners argue that it did not begin to run until December 29, 1989, which was alleged in the complaint to be the date that they first realized that the stillbirth was caused by medical negligence. The health-care providers assert that the statute began to run on April 1, 1988, because on that date the Tanners clearly knew that the injury had occurred.

Ideally, the question could be answered by reference to the statute itself. However, the statutes of limitation applicable to medical malpractice have never been clear on the subject, and courts have often been called upon to construe them. The current statute, which read the same when the Tanners had their stillborn child, is no exception:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence....

Section 95.11(4)(b), Fla.Stat. (1991). 2

The health-care providers rely heavily upon the principle announced in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), and applied in Barron v. Shapiro, 565 So.2d 1319 (Fla.1990), and University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991), which principle we shall refer to as the Nardone rule. In Nardone, a boy had undergone several brain operations and other procedures in early 1965. By the time he was discharged in July of that year, he was blind and comatose and had suffered irreversible brain damage. A malpractice action was filed in May of 1971. The physicians and hospital defended on the ground that the suit had not been filed within the applicable four-year statute of limitations. In the course of answering questions certified to us by the Fifth Circuit Court of Appeals, we stated:

Appellants request that this Court adopt the view that the statute of limitations did not commence to run until they became aware of the negligence of the physicians and hospital. Previously, this Court has held that the statute of limitations in a malpractice suit commences either when the plaintiff has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). Sub judice, the plaintiffs were on actual notice of the decerebrate state of their son, that he had suffered irreversible brain damage, and in accordance with Brooks, supra, the statute of limitations began to run when the injury was known.

Nardone, 333 So.2d at 32 (emphasis added).

In Barron, 565 So.2d 1319, we reaffirmed the principle of Nardone that the statute begins to run when the plaintiffs knew or should have known that either the injury or the negligence had occurred. We recognized that a new statute of limitations applicable to malpractice had been enacted, 3 but we reasoned that the language was not sufficiently explicit to dictate a contrary result. In Barron, the patient had undergone an operation for removal of malignant polyps in his colon on August 17, 1979. Following surgery, he developed a serious infection. He was transferred into the hands of other physicians and the infection was finally brought under control by medication. However, the patient's eyesight began to deteriorate in October of 1979, and by December 31, 1979, he was diagnosed as blind. In January of 1982, the patient obtained a medical opinion that his blindness was caused by the negligence of his treating physician. The patient and his wife filed a malpractice action a few days later. We concluded that the plaintiffs were on notice of the injury by at least December 31, 1979, when the blindness was confirmed. Thus, pursuant to Nardone, we held that the applicable statute of limitations, which was then two years, had run prior to the filing of the malpractice action.

We addressed the issue once again in Bogorff, 583 So.2d 1000. There, a three-year-old boy had been suffering from leukemia but was in remission in July of 1971. In order to maintain the remission, the doctor began treating him with doses of methotrexate. In February of the following year, the boy's condition worsened, and three months later he lapsed into a coma. By July of 1972, he was a quadriplegic and severely brain damaged. During the next few years, his parents took the boy to a series of physicians. In 1982 they learned for the first time that the administration of methotrexate had been negligently accomplished, and they filed a malpractice action in December of that year. The district court of appeal held that the limitations period had not expired because the statute required that the parents have knowledge of both the physical injury and the negligent act which caused the injury before the statutory period could begin to run. We pointed out that this was an inaccurate statement of the law and reaffirmed the principle that the triggering event for the limitation period was when the plaintiff should have known of either the injury or the negligent act. However, because there were allegations of fraudulent concealment, the case was ultimately decided on the basis that the suit was barred by the statute of repose.

On the other hand, the Tanners point to Ash v. Stella, 457 So.2d 1377 (Fla.1984), Florida Patient's Compensation Fund v. Tillman, 487 So.2d 1032 (Fla.1986), and Florida Patient's Compensation Fund v. Cohen, 488 So.2d 56 (Fla.1986), each of which are at least susceptible to the interpretation that the malpractice statute of limitations does not begin to run until there is knowledge of all the elements of a completed tort, including the negligent act, the injury, and the causal connection between the two.

However, the Tanners most strongly rely upon this Court's decision in Moore v. Morris, 475 So.2d 666 (Fla.1985). In that case, after the mother commenced labor the husband was advised that there was an emergency and that the baby would be taken by caesarean section. After the infant was born, she was "blue," and a tube was ultimately inserted in her chest to assist in breathing. However, the baby physically appeared to make a speedy and complete recovery, and the parents were repeatedly told by their physicians that she was fine. It was only after the child became three years old that she was diagnosed as having brain damage. The issue before the Court was whether the statute of limitations began to run upon the date of the birth or when the diagnosis of brain damage was made. In reversing a summary judgment for the defendants, we held that there was evidence in the record which would tend to prove that the Moores were not on notice of either the negligent act or the injury at the time of the infant's birth, emphasizing that until the parents received the adverse diagnosis, they had been consistently told that the child was healthy. However, Moore may arguably...

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