NICHOLAS A. STELLA, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CYNTHIA LEE STELLA, DECEASED, ETC., ET AL., APPELLANTS,
v.
TERRENCE M. ASH, D.C., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appellate court reversed summary judgment in wrongful death medical malpractice case, holding that an action brought within two years of death is not time-barred and that knowledge of the true condition does not conclusively establish discovery of the defendant's alleged malpractice as a matter of law.
A wrongful death action brought within two years from the time of death is not limitations-barred under Florida Statutes Section 95.11(4)(b), and knowledge of the true medical condition does not conclusively establish discovery of alleged malpractice as a matter of law.
[1] A wrongful death action brought within two years from the time of death is not barred by the statute of limitations under Florida Statutes Section 95.11(4)(b), even if th…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceDr. Ash allegedly misdiagnosed Cynthia Lee Stella's condition in 1975. Mrs. Stella's malignancy was correctly diagnosed two years and several days bef…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Discovery Rule For Statute Of Limitations cases and more on FLexlaw
PER CURIAM.
The trial court, finding that the appellants’ wrongful death action was limitations-barred under Section 95.11(4)(b), Florida Statutes (1979), entered summary judgment for Dr. Ash. We reverse upon holdings that (1) a wrongful death action, when, as here, brought within two years from the time of death of the injured party, is not limitations-barred, Perkins v. Variety Children’s Hospital, 413 So. 2d 760 (Fla. 3d DCA 1982); see also Bruce v. Byer, 423 So. 2d 413 (Fla. 5th DCA 1982); and (2) even if, arguendo, the action were required to be brought within two years from the time the incident giving rise to the action was discovered or should have been discovered with the exercise of due diligence, the fact that Mrs. Stella’s malignancy was correctly diagnosed two years and several days prior to the commencement of the action does not conclusively establish as a matter of law that she then should have known that Dr. Ash misdiagnosed her condition in 1975, since Mrs. Stella’s knowledge of her true condition is but a factor among others in evaluating whether she should have discovered the defendant’s asserted malpractice. Nolen v. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980); Schalm v. Mount Clemens General Hospital, 82 Mich.App. 669, 267 N.W. 2d 479 (1978).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
ASH v. Stella, 457 So. 2d 1377 (Fla. 1984)…PER CURIAM. We have for review a decision of a district court of appeal, Stella v. Ash, 425 So. 2d 122 (Fla. 3d DCA 1982), which is in conflict with decisions of other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. [*1378] The issue in this case is when does the statute of limitations begin to run in wrongful death act…1 / 2
-
Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152 (Fla. 3d DCA 1987)…tion 95.11(4)(d), Florida Statutes (1981), applied to claims such as Kaufman’s, namely, claims for a patient’s wrongful death which allegedly results from medical malpractice. See Lipshaw v. Pinosky, 442 So. 2d 992 (Fla. 3d DCA 1983); Stella v. Ash, 425 So. 2d 122 (Fla. 3d DCA 1982). Under this law, Kaufman’s claim could have been filed as late as November 16, 1985, some time after the firm and Chasin were discharged. The Supreme Court of Florida subsequently reversed this district’s holding, deciding that cl…
-
Lipshaw v. Pinosky, Pinosky, P.A., 442 So. 2d 992 (Fla. 3d DCA 1983)…irst asserted in the third amended complaint filed March 24, 1981, was timely filed within the applicable two-year statute of limitations for wrongful death actions, whether that statute be Section 95.11(4)(b) Florida Statutes (1981), Stella v. Ash, 425 So. 2d 122 (Fla. 3d DCA 1982); Bruce v. Byer, 423 So. 2d 413 (Fla. 5th DCA 1982); Eland v. Aylward, 373 So. 2d 92 (Fla. 2d DCA 1979), or Section 95.11(4)(d), Florida Statutes (1981). Perkins v. Variety Children’s Hospital, 413 So. 2d 760, 764 (Fla. 3d DCA 1982…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coy L. Nolen v. Sylvan H. Sarasohn, 379 So. 2d 161 (Fla. 3d DCA 1980)
- Perkins v. Variety Child's. Hosp., 413 So. 2d 760 (Fla. 3d DCA 1982)
- William W. Bruce, M.D. v. Byer, 423 So. 2d 413 (Fla. 5th DCA 1982)
- Vogel v. Palm Beach Newspapers, Inc., 423 So. 2d 413 (Fla. 4th DCA 1982)