University of Miami v. Bogorff, Nos. 74797

CourtFlorida Supreme Court
Writing for the CourtMcDONALD; OVERTON and GRIMES, JJ., and EHRLICH; SHAW
Citation16 Fla. L. Weekly 149,583 So.2d 1000
Docket Number74835 and 74863,Nos. 74797
Decision Date18 January 1991
Parties16 Fla. L. Weekly 149 UNIVERSITY OF MIAMI, Petitioner, v. Adam BOGORFF, etc., et al., Respondents. Kjell KOCH, M.D., Petitioner, v. Adam BOGORFF, etc., et al., Respondents. LEDERLE LABORATORIES, Petitioner, v. Adam BOGORFF, etc., et al., Respondents.

Page 1000

583 So.2d 1000
16 Fla. L. Weekly 149
UNIVERSITY OF MIAMI, Petitioner,
v.
Adam BOGORFF, etc., et al., Respondents.
Kjell KOCH, M.D., Petitioner,
v.
Adam BOGORFF, etc., et al., Respondents.
LEDERLE LABORATORIES, Petitioner,
v.
Adam BOGORFF, etc., et al., Respondents.
Nos. 74797, 74835 and 74863.
Supreme Court of Florida.
Jan. 18, 1991.
Rehearing Denied Aug. 29, 1991.

Page 1001

A. Blackwell Stieglitz and Steven E. Stark of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for petitioner, University of Miami.

Shelley H. Leinicke of Wicker, Smith, Blomzvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for petitioner, Kjell Koch, M.D.

Paul R. Regensdorf of Fleming, O'Bryan & Fleming, Fort Lauderdale, for petitioner, Lederle Laboratories.

John Beranek of Aurell, Radey, Hinkle & Thomas, Tallahassee, Florida; and Jon E. Krupnick of Krupnick, Campbell, Malone & Roselli, P.A., Fort Lauderdale, for respondents.

McDONALD, Justice.

We review Bogorff v. Koch, 547 So.2d 1223 (Fla. 3d DCA 1989), based on express and direct conflict with Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), and Barron v. Shapiro, 565 So.2d 1319 (Fla.1990). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We quash Bogorff and direct the district court to reinstate the trial court's decision.

This case involves whether a trial court properly granted summary judgment in favor of the defendants in a medical malpractice action because the plaintiffs filed their complaint after the statutory limitation period had expired. We hold that the trial court properly granted summary judgment as a matter of law.

In 1970 doctors diagnosed three-year-old Adam Bogorff as having undifferentiated lymphoblastic leukemia. Later that year the Bogorffs moved to Florida where Adam became the patient of Dr. Koch, a member of the University of Miami's medical staff. At that time Adam's leukemia was in remission. In July 1971, to maintain the remission of leukemia, Dr. Koch began treating Adam with doses of methotrexate administered intrathecally (in the spine) in conjunction with spinal and cranial radiation. Adam suffered the side effects associated with this treatment, including loss of hair and appetite, that Dr. Koch told the Bogorffs to expect. In January 1972 Dr. Koch administered a final intrathecal injection of methotrexate as a prophylactic measure. Approximately one month later the Bogorffs noticed changes in Adam's condition including slurred speech, headaches, nausea, impaired motor skills, and lethargy. Three months later Adam suffered convulsions and lapsed into a coma. Treatment succeeded in bringing Adam out of the coma. Unfortunately, he never regained his former state of health and, by July 1972, was a quadriplegic and severely brain damaged.

Over the next few years, the Bogorffs took Adam to a series of physicians in an unsuccessful effort to improve his condition. During that time Dr. Koch continued to monitor Adam's leukemia, which remained in remission, until his departure from the area in 1978. In 1979 the Bogorffs contacted legal counsel regarding the existence of a medical malpractice or products liability claim for Adam's injuries but were advised that no cause of action existed. In 1982, to support their application for social security financial aid, the Bogorffs obtained Adam's complete medical records from his pediatrician, Dr. Winick. For the first time they read the correspondence among the physicians who had treated or evaluated Adam. These letters indicated that Dr. Koch's administration of intrathecal methotrexate in conjunction with radiotherapy was a possible cause of

Page 1002

Adam's condition. In December 1982 the Bogorffs filed a multi-count complaint against Dr. Koch seeking damages for medical malpractice, against the University of Miami for vicarious liability, and against Lederle Laboratories, the manufacturer of methotrexate, for products liability.

Contending that the expiration of the statute of limitation barred the Bogorffs' complaint, Dr. Koch, the University of Miami, and Lederle Laboratories moved for summary judgment. The trial court granted summary judgment in their favor, finding that the statute of limitation had expired. The district court reversed, holding that genuine issues of material fact existed with respect to when the Bogorffs' cause of action accrued and the statutory limitation period commenced. In reaching its decision the district court held that "[i]f, in April 1972, they [the Bogorffs] knew that something was wrong with Adam, it does not necessarily follow that they knew or should have known that Adam's condition was caused by medical negligence." 547 So.2d at 1227. Thus, the district court required the Bogorffs to have knowledge both of Adam's physical injury and that a negligent act caused his injury before the limitation period could begin to run.

We do not find this to be an accurate statement of the law. In Barron we expressly rejected the argument that knowledge of a physical injury, without knowledge that it resulted from a negligent act, failed to trigger the statute of limitation. Rather, we reaffirmed the principle set forth in Nardone and applied in Moore v. Morris, 475 So.2d 666 (Fla.1985), and held that the limitation period commences when the plaintiff should have known of either (1) the injury or (2) the negligent act.

In the case under review, therefore, the triggering event for the limitation period was the Bogorffs' notice of injury to their child; not, as the district court required, additional notice that Dr. Koch's negligence caused the injury. No party disputes that Adam Bogorff's injuries occurred, at the latest, by July 1972. At that time the Bogorffs knew of Adam's paralyzed and unresponsive condition. Although they did not know if medical negligence caused that condition, they knew that Dr. Koch had treated Adam and knew of his injury. This was sufficient for their cause of action to accrue, thereby commencing the statutory limitation period against Dr. Koch and the University of Miami. Barron; Nardone. See also Cristiani v. City of Sarasota, 65 So.2d 878...

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75 practice notes
  • Passatempo v. McMenimen, SJC–10978.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 12, 2012
    ...fraudulent concealment. 20. See, e.g., Burns v. Hartford Hosp., 192 Conn. 451, 459, 472 A.2d 1257 (1984); University of Miami v. Bogorff, 583 So.2d 1000, 1004–1005 (Fla.1991); Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 327 S.E.2d 221 (1985); Stankiewicz v. Estate of LaRose, 151 Vt. 4......
  • Walls v. Armour Pharmaceutical Co., No. 89-1705-CIV-T-23B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 19, 1993
    ...Corp., 589 So.2d 1379, 1381 (Fla. 4th DCA 1991), review denied, 599 So.2d 1278 (Fla.1992) (citing University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991)). In a case involving a prescription drug, the Babush court stated that the following factors bear on the issue as to when the facts gi......
  • Doe v. Shands Teaching Hosp. and Clinics, Inc., No. 91-3099
    • United States
    • Court of Appeal of Florida (US)
    • February 19, 1993
    ...under the statute of repose, carefully selected language which we are not at liberty to ignore. In University of Miami v. Bogorff, 583 So.2d 1000, 1003-1004 (Fla.1991), the court ruled that the statute here in question did not violate article I, section 21, of the Florida Constitution, [A] ......
  • Kush v. Lloyd, Nos. 76476
    • United States
    • United States State Supreme Court of Florida
    • December 3, 1992
    ...Phelan. Carr v. Broward County, 541 So.2d 92 (Fla.1989). We addressed the statute of repose once again in University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991). This was a suit alleging medical malpractice in the treatment of a child suffering from lymphoblastic leukemia. In January of ......
  • Request a trial to view additional results
75 cases
  • Passatempo v. McMenimen, SJC–10978.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 12, 2012
    ...fraudulent concealment. 20. See, e.g., Burns v. Hartford Hosp., 192 Conn. 451, 459, 472 A.2d 1257 (1984); University of Miami v. Bogorff, 583 So.2d 1000, 1004–1005 (Fla.1991); Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 327 S.E.2d 221 (1985); Stankiewicz v. Estate of LaRose, 151 Vt. 4......
  • Walls v. Armour Pharmaceutical Co., No. 89-1705-CIV-T-23B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 19, 1993
    ...Corp., 589 So.2d 1379, 1381 (Fla. 4th DCA 1991), review denied, 599 So.2d 1278 (Fla.1992) (citing University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991)). In a case involving a prescription drug, the Babush court stated that the following factors bear on the issue as to when the facts gi......
  • Doe v. Shands Teaching Hosp. and Clinics, Inc., No. 91-3099
    • United States
    • Court of Appeal of Florida (US)
    • February 19, 1993
    ...under the statute of repose, carefully selected language which we are not at liberty to ignore. In University of Miami v. Bogorff, 583 So.2d 1000, 1003-1004 (Fla.1991), the court ruled that the statute here in question did not violate article I, section 21, of the Florida Constitution, [A] ......
  • Kush v. Lloyd, Nos. 76476
    • United States
    • United States State Supreme Court of Florida
    • December 3, 1992
    ...Phelan. Carr v. Broward County, 541 So.2d 92 (Fla.1989). We addressed the statute of repose once again in University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991). This was a suit alleging medical malpractice in the treatment of a child suffering from lymphoblastic leukemia. In January of ......
  • Request a trial to view additional results

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