Taylor v. Orlando Clinic

• Citation: 555 So.2d 876,14 Fla. L. Weekly 2710
• Decision Date: 22 November 1989
• Docket Number: Nos. 89-14,89-17 and 89-18,89-16,89-15,s. 89-14
• Parties: 14 Fla. L. Weekly 2710 Janet S. TAYLOR, et al., Appellants, v. ORLANDO CLINIC, Gary Young, et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 876

555 So.2d 876

14 Fla. L. Weekly 2710

Janet S. TAYLOR, et al., Appellants, v. ORLANDO CLINIC, Gary Young, et al., Appellees.

Nos. 89-14, 89-15, 89-16, 89-17 and 89-18.

District Court of Appeal of Florida,

Fifth District.

Nov. 22, 1989.

Rehearing Denied Jan. 25, 1990.

Sammy Cacciatore of Nance, Cacciatore, Sisserson & Duryea, Melbourne, and T.G. LaGrone of T.G. LaGrone & Associates, P.A., Orlando, for appellants.

Kimberly A. Ashby and Charles W. Abbott of Maguire, Voorhis & Wells, P.A., for appellee Young.

Brian D. Stokes of Taraska, Grower, Unger & Ketcham, P.A., Orlando, for appellees James J. Linville, M.D., and Calabrese & Linville, M.D., P.A.

COWART, Judge.

Alleging personal injuries resulting from medical malpractice, a patient filed a negligence action against appellee health care providers. The patient's wife joined in the action alleging her cause of action for loss of consortium arising out of the same medical malpractice. Thereafter the patient died allegedly as a result of the personal injury which was the basis for the pending negligence action. A suggestion of death was filed of record on March 21, 1988. No motion for substitution was made within 90 days after the recorded suggestion of death, which 90 day period expired on June 19, 1988. On September 2, 1988, the personal representative of the deceased patient's estate filed a motion for leave to amend the complaint to substitute a wrongful death action under section 768.18, Florida Statutes, for the personal injury action. On September 7, 1988, the personal representative filed a separate wrongful death action against appellee health care providers. Thereafter, in the original negligence action, the trial court denied the motion for leave to amend and, upon the appellee's motion, based on Florida Rule of Civil Procedure 1.260(a)(1), ¹ dismissed that action because a motion for substitution was not made within 90 days after the patient's death was suggested of record. Thereafter, upon the appellee's motion, the trial court dismissed the separate wrongful death action because it "constitute[d] an impermissible splitting of the cause of action" [set forth in the original negligence action]. The patient's wife, individually and as the personal representative of the patient's estate, appeals. We reverse.

There are three separate causes of action involved in this case: (1) the patient's common law personal injury cause of action for negligence; (2) the patient's wife's derivative cause of action for loss of consortium and (3) a wrongful death action under sections 768.16-768.27, Florida Statutes.

The patient's original personal injury action was viable when filed but was extinguished by the patient's death when it was not reduced to judgment before the patient died.

The wife's cause of action for loss of consortium, while derived from the personal injury to the husband, survives the death of her husband-patient, whose own personal injury action did not survive his death. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955); Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988), rev. denied, 531 So.2d 1354 (Fla.1988). See also, Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA 1974), cert. denied, 297 So.2d 836 (Fla.1974); Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla. 1st DCA 1972). It was error to dismiss the wife's cause of action for loss of consortium.

The wrongful death action filed by the personal representative is an independent cause of action based on sections 768.16-768.27, Florida Statutes. Nissan Motor Co., Ltd. v. Phlieger, 508 So.2d 713 (Fla.1987).

While the original personal injury negligence action was, and the two other actions are, based in part on the same allegations of medical negligence, and the wife's consortium action derives from the husband's injury, the three causes of action are entirely independent and different in many significant ways. The personal injury cause of action for negligence is based on the common law; the cause of action for wrongful death is provided by statute ( § 768.19, Fla.Stat.). The negligence action requires a personal injury but not a death; the wrongful death action requires a death but not necessarily a death caused by negligence. The negligence action accrues at the time of the negligent act; the wrongful death action accrues at the time of the death. The negligence action is in favor of the person injured; the wrongful death action is in favor of the decedent's estate and statutorily designated survivors. The measure of damages in a personal injury negligence action is different from the damages provided by section 768.21, Florida Statutes, for a wrongful death. In effect, both causes of action cannot exist at the same time because the cause of action for wrongful death does not accrue until the death which is the very event that extinguishes the personal injury cause of action that theretofore existed in favor of the negligently injured person.

At common law real actions, contract actions (actions on express or implied contracts) and actions for wrongs which damaged or diminished the decedent's property, survived the plaintiff's death, but actions for personal wrongs and personal injuries were considered "personal" causes of action and died with the person. ² The common law rule that personal causes of action die with the person has been generally...