University of Miami v. Bogorff
| Decision Date | 18 January 1991 |
| Docket Number | 74835 and 74863,Nos. 74797,s. 74797 |
| Parties | 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. |
| Court | Florida Supreme Court |
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.
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 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 (Fla.1953) (). Adam received treatments to maintain the remission of his leukemia; three months after the last treatment he became comatose and, soon thereafter, completely disabled. As a matter of law, the Bogorffs were on notice of the possible invasion of their legal rights and the limitation period began running. See Nardone; Seaboard Air Line Railroad v. Ford, 92 So.2d 160 (Fla.1955); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954).
The Bogorffs contend they did not know or should not have known that Adam had suffered a distinct injury because Dr. Koch informed them that the natural spread of leukemia to the brain or a viral infection caused Adam's ever-worsening physical condition and denied that his treatment caused Adam's injuries. In essence, the Bogorffs claim that Dr. Koch's acts constituted fraudulent concealment, thus tolling the statute of limitation until they discovered their cause of action in 1982.
Under the circumstances of this case, there is an issue of fact on whether Dr. Koch's actions constituted fraudulent concealment. Numerous physicians examined Adam and offered possible theories for the cause of his condition, including intrathecal methotrexate. 1 On the other hand, Dr. Koch opined that leukemia or a viral infection caused Adam's condition. 2 Differing expert opinions generally do not amount to fraudulent concealment or misrepresentation when there are other equally, or more, likely causes of a patient's condition. A jury, however, may have determined that Dr. Koch's views were not an honest difference of opinion, but were taken to detract from the Bogorffs' concerns that there was a causal connection between his treatment and Adam's ultimate condition. An attending physician has a strong duty to fully address the concerns of patients and to be fully candid with them. If a doctor's communication to a patient was intended to cause that patient to abandon a claim or an investigation, it may amount to fraudulent concealment.
Even if there were fraudulent concealment by Dr. Koch, however, we find the Bogorffs' complaint against Koch and the University of Miami barred by the repose period set forth in subsection 95.11(4)(b), Florida Statutes (1975), which states in pertinent part:
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; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.
(Emphasis added). In contrast to a statute of limitation, a statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or completion of improvements, rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued. See Melendez v. Dreis & Krump Manufacturing Co., 515 So.2d 735 (Fla.1987); Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1984); Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978).
The Bogorffs contend that this statute cannot be applied to an incident...
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