Vilord v. Jenkins
| Decision Date | 27 August 1969 |
| Docket Number | 69--129,Nos. 69--8,s. 69--8 |
| Parties | Elizabeth Ann VILORD and her husband, Charles Vilord, Appellants, v. William JENKINS, M.D., Appellee. |
| Court | Florida District Court of Appeals |
Robert Orseck, of Podhurst & Orseck, and Spence, Payne & Masington, Miami, for appellants.
John W. Hamilton, of Ramseur, Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellee.
This is a malpractice action brought by plaintiff-appellants against the appellee-doctor. Summary judgment was entered in favor of the doctor and plaintiffs appeal.
In December, 1961, while in a physician-patient relationship, the appellee-doctor advised the appellant-wife to consent to a female sterilization procedure (known as a bilateral partial salpingectomy). It is alleged that he expressly '* * * contracted and promised and guaranteed that his performance of female sterilization would render the plaintiff, (wife), unable permanently thereafter to conceive or become pregnant * * *'. Both appellants consented to the sterilization procedure and it was performed by the appellee-doctor on or about December 11, 1961. Approximately five years later the appellant-wife became pregnant, and was subsequently delivered of a baby girl by caesarean section on April 10, 1967.
Appellants' complaint sounded both in negligence (for negligent performance of the aforesaid sterilization), and in contract (for breach of the express 'guaranty'). After issue was joined defendant-appellee filed a motion for summary judgment, and voluminous evidence was submitted thereon. The trial judge granted the motion for summary judgment, but based his order solely 'on the grounds that the plaintiffs are barred by the statute of limitations'. We reverse.
The essential facts bearing on the question of limitation of the actions are undisputed. Thus if the appellants are barred by the statute of limitations the four-year statute (§ 95.11(4), F.S.A.), bars their negligence count, and the three-year statute (§ 95.11(5)(c), F.S.A.) bars their contract action. We are of the opinion, however, that neither statute has run as to the count against which it applies. We will treat each one separately.
As to the negligence count, the law in this state is that a statute of limitations begins to run when there has been Notice of invasion of the legal rights of the plaintiff, i.e., when he has been put on notice of his right of action. 1 In City of Miami v. Brooks, the plaintiff underwent x-ray therapy which, it was said, was negligently administered in 1944. It wasn't until 1949 that resulting x-ray burns became apparent for the first time. Recognizing the general rule that when there is notice of the negligent act the statute begins to run even if its full consequences are not known, the court went further and held that even though there is notice of the act itself, if its negligent character cannot become known until its consequences become apparent, then the statute does not begin to run until notice of the consequences.
The rule announced in the Brooks case is controlling here. Appellants were not aware, and could not have been aware, of any right of action sounding in negligence until appellant-wife became pregnant; and we take judicial notice that this had to have occurred sometime in 1966. But we don't have to worry about the exact date of conception since suit was filed well within two years thereafter, and, certainly within the applicable four-year statutory period. The negligence action was therefore not barred.
Now, with regard to the Ex contractu count, it may well be argued that the statute of limitations runs from the date of conception for the same reasons outlined above relating to the negligence count. That is to say, that the statute begins to run when there has been notice of the invasion of the legal right involved. The notice of such invasion, in either case, was the first sign of pregnancy. But we need not consider this argument since we can arrive at the same conclusion otherwise.
First of all we perceive the...
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...16 Ill.App.3d 63, 305 N.E.2d 571, 573 (1973).34 Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463, 471 (1967); Vilord v. Jenkins, 226 So.2d 245, 246 (Fla.App.1969). See 41 Am.Jur., Physicians & Surgeons § 105.35 Crawford v. Duncan, 61 Cal.App. 647, 215 P. 573, 574 (1923); Guilmet, sup......
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Au v. Au
...set forth in HRS § 657-1(1). A warranty results from the contractual relationship existing between the parties. See Vilord v. Jenkins, 226 So.2d 245 (Fla.Dist.Ct.App.1969); Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767 (1966); Robins v. Firestone, 308 N.Y. 543, 127 N.E.2d 330 (1955). ......
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Nardone v. Reynolds
...of the physician's acts, assuming arguendo that they were negligent, occurred in 1965. The District Court of Appeal in Vilord v. Jenkins, 226 So.2d 245 (Fla.App.2, 1969), a malpractice action for the negligent performance of a female sterilization procedure wherein the plaintiff became preg......
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AC, Inc. v. Baker
...right to commence an action for breach arises when the contract is made. Stephens, 429 So.2d at 282-83 (citing Vilord v. Jenkins, 226 So.2d 245, 247 (Fla.Dist.Ct.App.1969)). However, when the warranty relates to a future fact or event, a party's right to commence an action does not arise un......