Wilhelm v. Traynor, s. 82-426

• Decision Date: 21 July 1983
• Docket Number: 82-427 and 82-428,Nos. 82-426,s. 82-426
• Citation: 434 So.2d 1011
• Parties: Gregory L. WILHELM and Terri Wilhelm, his wife, and Doctors Mercy Hospital, Ltd., d/b/a Brookwood Community Hospital, Appellants, v. A.R. TRAYNOR, Jr., D.O., Orlando General Hospital, Inc., etc., and James J. Hynick, D.O., Appellees.
• Court: Florida District Court of Appeals

Page 1011

434 So.2d 1011

Gregory L. WILHELM and Terri Wilhelm, his wife, and Doctors

Mercy Hospital, Ltd., d/b/a Brookwood Community

Hospital, Appellants, v. A.R. TRAYNOR, Jr., D.O., Orlando General Hospital, Inc., etc., and James J. Hynick, D.O., Appellees.

Nos. 82-426, 82-427 and 82-428.

District Court of Appeal of Florida,

Fifth District.

July 21, 1983.

Karl O. Koepke of Whitaker & Koepke, Chartered, Orlando, for appellants, Wilhelm.

William E. Johnson of Parker, Johnson, Owen & McGuire, Orlando, for appellant, Doctors Mercy Hosp.

Robert C. Cooper of Cooper & Rissman, P.A., Orlando, for appellee, Orlando General Hosp., Inc. Ernest H. Eubanks of Pitts, Eubanks & Ross, P.A., Orlando, for appellee, James J. Hynick, D.O.

Russell Troutman of Troutman, Parrish & Williams, Winter Park, for appellee, A.R. Traynor, Jr., D.O.

FRANK D. UPCHURCH, Jr., Judge.

Appellant, Gregory L. Wilhelm, sued appellees for damages caused by appellees' failure to diagnose and treat his cancer, resulting in the loss of his leg. Appellant Doctors Mercy Hospital, Ltd. was also a defendant below, but it joins as an appellant in this action under the authority of Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), which holds that an appeal may be taken from an order which exonerates co-defendants. The trial court entered final summary judgment on the basis that Wilhelm knew in March 1979, more than two years before filing suit that a lesion on his knee was cancerous. See § 95.11(4)(b), Fla.Stat. (1979).

In March 1978, Wilhelm consulted Dr. Hynick for an ulcer in an area of psoriasis on his knee. Dr. Hynick had the area biopsied, but concluded it was not cancer when the pathology reports came back negative. The pathologist was Dr. Traynor, who practiced at Orlando General Hospital. When growths or nodules continued to appear over the year that Dr. Hynick continued treatment, Dr. Hynick referred Wilhelm to a doctor who specialized in orthopedic surgery. He recommended radiation treatment. Dr. Hynick then referred Wilhelm to Dr. Sawyer at the radiation department of Orlando Regional Medical Center. On March 8, 1979, Dr. Sawyer told Wilhelm that the lesion was cancerous, but he thought that radiation would cure the cancer. During the ensuing radiation treatments, all but one small nodule disappeared. While swimming in July 1979, Wilhelm bumped his knee and the area began to grow again. In September he again bumped his knee and suffered extreme pain. Dr. Sawyer then referred him to Dr. Walton because he felt Wilhelm could take no more radiation therapy.

Dr. Walton recommended surgical removal of the lesion, but he discovered a tumor under the skin. He removed the tumor which was also cancerous, and attempted to repair the wound with skin grafts. Repeated grafts would not grow and a staphylococcus infection developed. On December 3, 1979, Wilhelm was told his leg would have to be amputated.

Wilhelm instituted suit on June 21, 1981, and a third amended complaint was filed on March 15, 1982. Appellees filed motions for summary judgment alleging that the two-year statute of limitations for medical malpractice actions had expired prior to the institution of the action. It is from the order granting the summary judgments that appellants take their appeal.

The ultimate issue in determining whether the claim was timely filed, is whether Wilhelm knew or, upon the exercise of reasonable diligence, could have known of the true nature of his illness more than two years prior to instituting suit.

The Third District, in Almengor v. Dade County, 359 So.2d 892, 894 (Fla. 3d DCA 1978), said:

It is the established law of this state that the statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. This occurs when the plaintiff has notice of either (1) the negligent act giving rise to the cause of action, or (2) the existence of any injury which is the consequence of the negligent act, although the injury be slight and not involve all the damages later sustained.

In Roberts v. Casey, 413 So.2d 1226, 1229 (Fla. 5th DCA 1982), this court stated:

The statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). This occurs when the plaintiff has notice of either the negligent act which causes the injury or the existence of an injury which is a consequence of the negligent act. Almengor at 894.

As to Dr. Hynick and Dr. Traynor, we conclude that summary judgment was proper. Dr. Hynick's diagnosis was apparently based only on the negative pathology reports. If he were negligent in failing to recognize and advise Wilhelm of the existence of cancer, this omission was known at the latest when Dr. Sawyer informed Wilhelm of the existence of cancer in March, 1979. From that date Wilhelm had two years to institute suit, which he failed to do.

Dr. Traynor only examined the tissue samples submitted by Dr. Hynick. If he were negligent in misreading the tissue samples, that omission was also known when Dr. Sawyer diagnosed the cancerous condition in March, 1979. Therefore, the summary judgment is also correct as to him.

As to Orlando General Hospital, the complaint alleged that Dr. Traynor was acting under the supervision, direction and control of Orlando General Hospital. Because Orlando General Hospital is only vicariously responsible for the acts of Dr. Traynor, and he has no liability, the hospital is not liable.

Dr. Hynick and Dr. Traynor did not see Wilhelm for treatment after he was seen by Dr. Sawyer in March...