LOUISE TOBIN, APPELLANT,
v.
B. V. DANNHEISSER, JR., APPELLEE
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The court held that a genuine issue of material fact existed regarding the discovery of the alleged malpractice, precluding summary judgment.
Appellant sued appellee dentist for medical malpractice, which the trial court found barred by the statute of limitations. Appellant argued the action…
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PER CURIAM.
A final summary judgment was entered by the trial court finding that appellant’s action against appellee, a dentist, for alleged medical malpractice was barred by the statute of limitations, Section 95.-U(4)(b), Florida Statutes (1975). We reverse.
Appellant’s contention that the action was timely commenced because a claim was submitted pursuant to the medical liability mediation procedures set forth in Section 768.44, Florida Statutes (1977) within two years of the allegedly negligent treatment by appellee is without merit. Young v. Bramlett, 369 So. 2d 652 (Fla. 1st DCA 1979).
However, we agree with'appellant’s contention that a genuine issue of material fact existed which precluded entry of summary judgment with respect to when appellant discovered or, with the exercise of due diligence, should have discovered the incident giving rise to the cause of action. Brooks v. Cerrato, 355 So. 2d 119 (Fla. 4th DCA 1978), cert. den. 361 So. 2d 831 (Fla.1978); Salvaggio v. Austin, 336 So. 2d 1282 (Fla. 2d DCA 1976). Accordingly, the final summary judgment is reversed and the cause is remanded for further proceedings.
MILLS, Acting C. J. and LARRY G. SMITH, J., concur. BOOTH, J., dissents.
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Coy L. Nolen v. Sylvan H. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980)…scovered or through the use of due diligence should have discovered the incident giving rise to the instant cause of action, summary judgment should not have been granted. See Eland v. Aylward, 373 So. 2d 92 (Fla. 2d DCA 1979); Tobin v. Dannheisser, 372 So. 2d 970 (Fla. 1st DCA 1979) and cases cited therein. Accordingly, the summary judgment is reversed and the cause remanded to the trial court for further proceedings. Reversed and remanded. . 95.11 Limitations upon actions other than for the recovery of r…
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Sch. Bd. OF Seminole Cnty. v. GAF Corp., 413 So. 2d 1208 (Fla. 5th DCA 1982)…the injury. First Federal Savings and Loan Association of Wisconsin v. Dade Federal Savings and Loan Association., 403 So. 2d 1097 (Fla. 5th DCA 1981); Mott v. Fort Pierce Memorial Hospital, 375 So. 2d 360 (Fla. 4th DCA 1979); Tobin v. Dannheisser, 372 So. 2d 970 (Fla. 1st DCA 1979). Further, the reviewing court must draw every possible inference in favor of the party against whom the summary judgment is made. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977). In these cases the record established tha…
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Morris Wimpey et ux. v. Gabriel A. Sanchez, M.D., 386 So. 2d 1241 (Fla. 3d DCA 1980)…tute of limitations had run was precluded.9 Nolen v. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So. 2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So. 2d 362 (Fla. 1st DCA 1979); Tobin v. Dannheisser, 372 So. 2d 970 (Fla. 1st DCA 1979); Almengor v. Dade County, 359 So. 2d 892 (Fla. 3d DCA 1978); Brooks v. Cerrato, 355 So. 2d 119 (Fla. 4th DCA 1978); Salvag- [*1245] gio v. Austin, 336 So. 2d 1282 (Fla. 2d DCA 1976).10 Reversed. .The complaint contained five co…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Effie Sharon Brooks and Richard L. Brooks v. Walter A. Cerrato, M.D., 355 So. 2d 119 (Fla. 4th DCA 1978)
- Shaw v. Shaw, 336 So. 2d 1282 (Fla. 3d DCA 1976)
- Genter v. State, 369 So. 2d 652 (Fla. 3d DCA 1979)
- Young v. Bramlett, 369 So. 2d 652 (Fla. 1st DCA 1979)