HARRY SWAGEL, APPELLANT,
v.
SOLOMON B. GOLDMAN, APPELLEE
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A physician obtained summary judgment in a medical malpractice case based on expiration of the two-year statute of limitations. The appellate court reversed, holding that a genuine factual dispute existed regarding when the plaintiff discovered or should have discovered the injury, precluding summary judgment.
The trial court improperly granted summary judgment. A genuine issue of fact exists regarding whether the plaintiff discovered or should have discovered the incident causing his injury prior to the date Dr. Goldman informed him the incontinence was permanent, which was within the statutory limitations period.
[1] The statute of limitations for medical malpractice begins to run when the incident is discovered or should have been discovered with due diligence.
[2] A physician's continued treatment and assurances that a post-operative condition is temporary may create a genuine issue of material fact regarding the discovery of a med…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a genuine issue, precluding summary judgment, was presented as to whether the plaintiff discovered or should have discovered the incident which caused his injury— that is, the now-alleged surgical malpractice — prior to the later date, which was within the statutory period, that the defendant finally informed him that the incontinence was permanent”
Establishes that the physician's continued treatment and reassurances created a disputed fact about discovery timing, preventing summary judgment
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Join FLexlaw to unlock all legal intelligenceDr. Goldman performed surgery on Swagel after which Swagel became incontinent. For over a year following the discovery of incontinence, Dr. Goldman co…
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SCHWARTZ, Judge.
The trial court granted summary judgment to the defendant physician, Dr. Goldman, on the ground that the medical malpractice two-year statute of limitations had expired. Sec. 95.11(4)(b), Fla.Stat. (1979).1 This ruling was based on the conclusion that, as a matter of law, the limitations period began to run when, after an operation performed by the defendant, the plaintiff discovered that he was incontinent. The plaintiff testified, however, that for over a year after that occurred, Dr. Goldman continued to treat him and to assure him that the condition was only a temporary one — presumably caused as a normal result of the operation — which would clear up in time. Under these circumstances, a genuine issue, precluding summary judgment, was presented as to whether the plaintiff discovered or should have discovered the incident which caused his injury— that is, the now-alleged surgical malpractice — prior to the later date, which was within the statutory period, that the defendant finally informed him that the incontinence was permanent. Tetstone v. Adams, 373 So. 2d 362 (Fla. 1st DCA 1979), cert. denied, 383 So. 2d 1189 (Fla.1980); Eland v. Aylward, 373 So. 2d 92 (Fla. 2d DCA 1979); Brooks v. Cerrato, 355 So. 2d 119 (Fla. 4th DCA 1978), cert. denied, 361 So. 2d 831 (Fla.1978); see generally, Wim-pey v. Sanchez, 386 So. 2d 1241, 1244-45 (Fla. 3d DCA 1980); Nolen v. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980), and cases cited.
Reversed.
. § 95.11(4)(b). 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Eoghan N. Kelley v. Sch. Bd. OF Seminole Cnty., 435 So. 2d 804 (Fla. 1983)…cause of action actually existed or whether the school board had, or should have, discovered the existence of a problem. Compare First Fed. Sav. & Loan Ass’n v. Dade Fed. Sav. & Loan Ass’n, 403 So. 2d 1097 (Fla. 5th DCA 1981), and Swagel v. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981), with the instant case. . Before this Court the school board also makes a claim of fraudulent concealment. The pleadings in the trial court do not set out such a claim as to meet the requirements mentioned in Nardone v. Reynolds,…
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Fla. Patient's Comp. Fund v. Tillman, 453 So. 2d 1376 (Fla. 4th DCA 1984)…ise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred. Discovery of the “incident giving rise to the cause of action” is the point when the statute begins to run. In Swagel v. Goldman, 393 So. 2d 65 (Fla.3d DCA 1981), the court equated “incident” with the “now-alleged surgical malpractice.” The term “incident,” however, could not refer solely to the particular medical procedure since that would obviously be “discovered” at the time it was perfo…
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Perez v. Universal Eng'g Corp., 413 So. 2d 75 (Fla. 3d DCA 1982)…action accrues and the statute so contemplates. The running of the statute of limitations is tolled until a claimant, through the exercise of reasonable diligence, is put on notice as to the negligent act which caused the injury. Swagel v. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981); Nolen v. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980), Steiner v. Ciba-Geigy Corporation, supra. Appellants contend that it was long after their actual illnesses that they became aware that they had been exposed to the dangerous m…
Previewing 3 of 15 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)
- Coy L. Nolen v. Sylvan H. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980)
- Eland v. Aylward, 373 So. 2d 92 (Fla. 2d DCA 1979)
- Morris Wimpey et ux. v. Gabriel A. Sanchez, M.D., 386 So. 2d 1241 (Fla. 3d DCA 1980)
- Tetstone v. Adams, 373 So. 2d 362 (Fla. 1st DCA 1979)