RUBY WALKER, APPELLANT,
v.
J. V. DUNNE, M. D., APPELLEE
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The court held that a factual issue existed regarding fraudulent concealment, which could toll the statute of limitations, precluding summary judgment.
[1] A statute of limitations may be tolled if a defendant fraudulently conceals their negligence from the plaintiff.
[2] Summary judgment is inappropriate when there is a genuine issue of material fact regarding fraudulent concealment that would toll the statute of limitations.
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Join FLexlaw to unlock all legal intelligenceAppellant sued appellee for medical malpractice after a balloon tip was lost in her leg during surgery, leading to amputation. Appellee moved for summ…
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PER CURIAM.
This is an appeal from the entry of a summary final judgment in favor of appel-lee Dunne who was the defendant in a medical malpractice action in the court below. This action was based on a complaint filed by appellant, Mrs. Walker, in which she alleged that during an operation Dr. Dunne had lost a balloon tip in her leg. She further alleged that as a result of the presence of the balloon tip her leg had developed gangrene which necessitated its amputation.
In his motion for summary judgment, Dr. Dunne alleged that appellant had not filed her complaint within the applicable statute of limitations period. The trial court granted Dr. Dunne a summary judgment on this basis, finding that appellant became aware of his alleged negligence in October, 1975, and that the two-year limitation period of Section 95.11(4)(b), Florida Statutes (1975) barred her suit filed on July 19, 1978. We reverse.
In the affidavit which accompanied his motion for summary judgment Dr. Dunne stated that on October 24, 1975, immediately after Mrs. Walker awoke from surgery, he informed her that he had lost a balloon tip in her leg during that surgery. Mrs. Walker did not deny this, but in her affidavit she alleged that Dr. Dunne had continued to treat her and had told her that the amputation of her leg had not been a result of the lost balloon tip. Accordingly there was a factual issue as to whether Dr. Dunne fraudulently concealed his negligence, and thus there was a factual issue as to whether his conduct tolled the statute of limitations. Nardone v. Reynolds, 333 So. 2d 25 (Fla.1976). As a result, the trial court should not have determined the matter on summary judgment but rather, should have left the question to the trier of fact. Edwards v. Ford, 279 So. 2d 851 (Fla.1973); Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978); Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977).
In view of what we have said, we remand this case for further proceedings.
HOBSON, A. C. J., and SCHEB and RYDER, JJ., concur.
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Phillips v. Mease Hosp. & Clinic, 445 So. 2d 1058 (Fla. 2d DCA 1984)…summary judgment, as to appel-lee Florida Patients Compensation Fund. The issue then becomes a question of fact as to whether appellants discovered, or should have discovered, the alleged negligence of appellees prior to May 1982. Walker v. Dunne, 368 So. 2d 640 (Fla. 2d DCA 1979); Swagel v. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981). Assuming there are no new additional undisputed facts, the issue is for a jury and not the proper subject for summary judgment. Reversed and remanded. HOBSON, A.C.J., and RYD…
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Eland v. Aylward, 373 So. 2d 92 (Fla. 2d DCA 1979)…ered, or with the exercise of due diligence should have discovered, the quality of appellee’s conduct giving rise to her cause of action, summary judgment should not have been granted. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); see Walker v. Dunne, 368 So. 2d 640 (Fla. 2d DCA 1979). Accordingly, the order of final summary judgment is vacated and the cause remanded for further proceedings consistent with this opinion. REVERSED and REMANDED. SCHEB and RYDER, JJ., concur.…
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Brugiere v. Credit Commerciale France, 679 So. 2d 875 (Fla. 1st DCA 1996)…question whether one by exercise of reasonable diligence should have known he had a cause of action against a defendant is one of fact which should be left to the jury. See, e.g., Rosen v. Sparber, 369 So. 2d 960 (Fla. 3d DCA 1979); Walker v. Dunne, 368 So. 2d 640 (Fla. 2d DCA 1979); Green v. Bartel, 365 So. 2d 785 (Fla. 3d DCA 1978); Schetter v. Jordan, 294 So. 2d 130 (Fla. 4th DCA 1974). In Green, the court stated: Whether the plaintiff discovered, or by due diligence should have discovered, the existence…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)
- Edwards v. Ford, 279 So. 2d 851 (Fla. 1973)
- Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977)
- Smith v. Hussey, 363 So. 2d 1138 (Fla. 2d DCA 1978)