Todd v. Johnson

• Decision Date: 14 September 2007
• Docket Number: No. 1D06-6135.,1D06-6135.
• Citation: 965 So.2d 255
• Parties: John TODD and Katina Todd, his wife, Appellants, v. Marvin JOHNSON, M.D., Appellee.
• Court: Florida District Court of Appeals

965 So.2d 255

John TODD and Katina Todd, his wife, Appellants, v. Marvin JOHNSON, M.D., Appellee.

No. 1D06-6135.

District Court of Appeal of Florida, First District.

September 14, 2007.

Steve A. Rothenburg, Ocala and Jeffrey L. Meldon of Jeffrey Meldon & Associates, P.A., Gainesville, for Appellants.

Marynelle Hardee, Gainesville, D. Andrew Vloedman, Gainesville, and John E. Maines, IV, Lake Butler, for Appellee.

BENTON, J.

John and Katina Todd appeal the final judgment dismissing their second amended complaint, which alleges medical malpractice on the part of Marvin Johnson, M.D. The trial court granted Dr. Johnson's motion to dismiss the complaint on grounds the complaint was time barred, because it failed "to allege facts constituting fraud, concealment or intentional misrepresentation which prevented the Plaintiff[s] from discovering injury which would extend the statute of limitations [sic] beyond four years." See § 95.11(4)(b), Fla. Stat. (2004).¹ We reverse.

"Whether a complaint should be dismissed is a question of law." City of Gainesville v. State, Dep't of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). "As the factual foundation for its ruling on a motion to dismiss a complaint . . ., a court may consider only the factual allegations set forth in the complaint, must accept those allegations as true, and must resolve in the plaintiff's favor all inferences that might be drawn from those allegations." Mosby v. Harrell, 909 So.2d 323, 326 (Fla. 1st DCA 2005). "The propriety of the trial court's dismissal is a pure question of law as to which our standard of review is de novo." Sumner v. Gros, 958 So.2d 1038, 1039 (Fla. 1st DCA 2007). See also Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.2000) ("A trial court's ruling on a motion to dismiss based on a question of law is subject to de novo review."); Rudloe v. Karl, 899 So.2d 1161, 1162 (Fla. 1st DCA 2005). On appeal, "[o]ur review must also treat all well-pleaded allegations as true, and limit itself to the four corners of the complaint." Sumner, 958 So.2d at 1039; see also Gowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999).

The second amended complaint—the complaint at issue here—alleged that, when Mr. Todd applied for social security disability benefits, he was "instructed" in the course of ascertaining his eligibility for benefits to go to Gainesville Radiology Group for a chest x-ray on October 4, 2000; was furnished written notice that his evaluation would not include any medical care; and signed a form authorizing the release of x-ray results to Dr. Johnson, whom he identified as his physician.²

When an x-ray revealed a two-centimeter mass in Mr. Todd's lung "suspicious for malignancy," the complaint alleged, a radiologist called Dr. Johnson's office. According to the complaint, a notation in Mr. Todd's medical record at Dr. Johnson's office reads: "Dr. Johnson, Dr. Alderman from N.F. Radiology wants you to call her concerning John C. Todd." Below this, in different handwriting, allegedly appears: "Order x-ray that showed mass in lung." But, the complaint alleges, Dr. Johnson did not at that time contact Mr. Todd or let him know what the x-ray depicted; and Mr. Todd remained unaware of the x-ray findings for approximately three and a half years as a result. Only on or about July 23, 2004, according to the complaint, when Mr. Todd came to him for treatment for a persistent cough, did Dr. Johnson inform him that the chest x-ray taken October 4, 2000, revealed a mass on the lung. The complaint further alleges that a subsequent biopsy of the lung tumor conclusively established that it was malignant, and that the cancer was then at stage four.³

The Todds filed their original complaint on January 17, 2006,⁴ within two years of learning of Dr. Johnson's original failure to apprise them of the portentous x-ray, but more than four (and less than seven) years after Dr. Johnson had, they alleged, learned (or should be deemed to have known) of the x-ray himself. The complaint alleged injury on the theory that Dr. Johnson concealed a medical condition that required immediate attention, and deteriorated for want of treatment. The Todds argued below, as they argue here, that Dr. Johnson's failure to tell them about the x-ray amounted not only to actionable malpractice, but also to "concealment" that tolled the limitations period and extended the repose period.⁵ See Mangoni v. Temkin, 679 So.2d 1286, 1287 (Fla. 4th DCA 1996) (holding that nondisclosure may both be actionable itself and operate to "extend the statute of repose").

Whether the filing was timely turns on whether "it can be shown [or, at this stage of the proceedings, has been adequately pleaded] that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury." § 95.11(4)(b), Fla. Stat. (2004). The Todds alleged concealment, but the trial court dismissed the complaint, ruling that it failed to allege sufficient facts to constitute "concealment," within the meaning of section 95.11(4)(b), Florida Statutes (2004). In doing so, the trial court purportedly relied on the authority of Nehme v. Smithkline Beecham Clinical Labs., 863 So.2d 201, 203 (Fla. 2003),⁶ even though Nehme can be read as holding merely that the statutory term "concealment" does not "encompass negligent diagnosis by a medical provider." Id. at 209.

There are, to be sure, similarities between the facts in the present case and the facts of the Nehme case, which the supreme court set out in some detail, as follows:

On May 23, 1994, thirty-year-old Rhonda Nehme had a gynecological examination and pap smear at the Volusia County Public Health Department. The slide of the pap smear was delivered to Smithkline Beecham Clinical Laboratories, Inc. Smithkline then sent the slide to Shutze & Techman, P.A., the predecessor corporation of Premiere Medical Laboratories, P.A., for interpretation. In a June 1994 report, a cytotechnologist at Shutze & Techman interpreted the slide as "normal" and "within normal limits." Because the slide was interpreted as normal, no other cytologist or pathologist reviewed it, nor was the slide chosen for a random oversight review. Later expert testimony revealed that the interpretation was "egregious" and that the cytopathological evidence of malignancy was as "big as a house." Mrs. Nehme was diagnosed with cervical cancer in February 1997, of which she died in December 1997.

In September 1999, over five years after the pap smear report, petitioner Naji Nehme filed a medical malpractice and wrongful death complaint alleging that the cytotechnologist had misinterpreted the pap smear and that a proper interpretation would have revealed the existence of the malignancy. The petitioner sought damages on behalf of the estate, himself, and the Nehmes' six minor children. The respondents Smithkline, Premier, and Dr. Shutze moved for summary judgment, arguing that the case was barred by the four-year statute of repose as set forth in section 95.11(4)(b), Florida Statutes, which requires that any medical malpractice action be commenced no later than four years from the date of the incident or occurrence. The trial court granted summary judgment in favor of the respondents.

Id. at 203. Here, as in Nehme, the act giving rise to the negligence action is the act (nondisclosure) on which the plaintiffs rely to extend the period of repose.

The Todds' complaint does not, however, allege ignorance of the kind that afflicted the medical providers in the Nehme case, where none of them initially understood the significance of Mrs. Nehme's Pap smear. This lack of understanding was central to the analysis: The Nehme opinion teaches that there can be no concealment within the meaning of the statute without knowledge on the tortfeasor's part of what is being concealed. The supreme court found this inherent in the word "concealment," and cited dictionary definitions that support this view:

To extend the repose period, the statute requires that "concealment" prevent "the discovery of the injury." "Conceal" is defined as (1) to prevent disclosure or recognition of; and (2) to place out of sight. Merriam Webster's Collegiate Dictionary 238 (10th ed.1994). More specifically, "concealment" is defined as (1) the act of refraining from disclosure; esp. an act by which one prevents or hinders the discovery of something; and (2) the act of removing from sight or notice; hiding. Black's Law Dictionary 282 (7th ed.1999). Under these definitions, concealment connotes knowledge.

Id. at 205 (emphasis added). The Nehme court discussed Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), superseded by statute, Ch. 75-9, § 7, at 20-21, Laws of Fla. See Nehme, 863 So.2d at 207 ("Nardone holds that a doctor has a duty to disclose an adverse condition that is known or is readily available through efficient diagnosis."). The Nehme court distinguished Nardone on grounds Nardone was based on a prior version of the statute, saying that, while Nardone's "`efficient diagnosis' language is predicated on the doctor's `knowledge of the fact of the wrong done to the patient,'" id., the statute's subsequent amendment required fuller knowledge and a different analysis⁷ because "[o]ne cannot conceal what one does not know." Id.

Here appellants do not allege that Dr. Johnson concealed what he did not know. The complaint alleges that "he concealed the fact that Mr. Todd's chest x-ray showed a malignant two centimeter mass on October 4, 2000," not that he was unaware of the malignancy or its significance. There was no finding in Nehme (which was decided on motion for summary judgment) that the medical providers who had examined Mrs. Nehme's slides realized they showed that she was dying, but did not bother to tell her. The Nehme court's teaching that "negligent diagnosis, without more, does not constitute concealment," id. at 205, is inapposite in the present case, where no...