MEGAN MOORE, A MINOR, BY AND THROUGH HER PARENTS AND NEXT FRIENDS, HENRY MOORE AND SUSAN MOORE, AND HENRY MOORE AND SUSAN MOORE, INDIVIDUALLY, APPELLANTS,
v.
CHESTER MORRIS, M.D., ARTHUR SCHATZ, M.D., WILLIAM J. BREWSTER, M.D. AND NORTH SHORE HOSPITAL, APPELLEES
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Parents of a minor child injured at birth filed a medical malpractice action against physicians and a hospital. The trial court granted summary judgment for defendants on statute of limitations grounds, finding the parents had notice of the alleged negligence and injury at the time of birth. The appellate court affirmed, holding that the parents' knowledge of the emergency delivery complications constituted notice triggering the statute of limitations period.
The parents had constructive notice of the alleged negligence and injury at the time of birth based on the information conveyed to the father regarding the emergency delivery, failed oxygen treatment, and the child's oxygen deprivation. Therefore, the statute of limitations—which required the action to be filed within two years of the infant's birth—barred the lawsuit filed nearly five years later.
[1] A medical malpractice action is barred by the statute of limitations when parents are put on notice of alleged negligent conduct or injury at the time of a child's birth.
[2] Parents' knowledge of an emergency delivery, a problem with the birth, a child's oxygen deprivation, and the need for emergency medical intervention constitutes notice of…
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Join FLexlaw to unlock all legal intelligence“With these admissions in the record, as a matter of law they were on notice from the time of the birth of the alleged negligence or of injury to the infant and therefore, the trial judge was correct in granting a summary judgment based on the statute of limitations.”
The court's holding that parental knowledge of emergency birth complications and injury constituted legal notice triggering the statute of limitations.
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Join FLexlaw to unlock all legal intelligenceA pregnant woman presented to the hospital in labor. During delivery, an emergency Cesarean section was performed. After birth, the infant was cyanoti…
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BARKDULL, Judge.
Appellants, as plaintiffs, filed a medical malpractice action against the defendants seeking damages for injuries sustained by the infant child at birth. The trial judge entered summary judgment for the defendants finding that the action was barred by the statute of limitations,1 as the parents were put on notice at the time of the birth of the infant of the alleged negligent conduct or injury.
Prior to the mother being taken to the hospital for delivery it was a normal pregnancy. After she commenced labor the husband was advised there was an emergency and the baby would be taken by Cesarean Section. After the baby was born the father was on notice that for a period in excess of thirty minutes, while the infant was “blue”, the doctors had attempted to administer oxygen; that they were unsuccessful in their treatment, and received permission to transfer the infant to the emergency facility at Jackson Hospital, that one of the doctors did not expect the baby to live, another doctor told the father that he did the best he could and (apparently the baby would not live) and he, the father would have to do what he had to do.
While the child was being transported to Jackson in an emergency vehicle her chest was cut open and a tube inserted to assist her in breathing. The parents knew that it was an emergency situation, that there was a problem with the delivery, that the child had swallowed something which restricted breathing, and that the child was starved for oxygen.
With these admissions in the record, as a matter of law they were on notice from the time of the birth of the alleged negligence or of injury to the infant and therefore, the trial judge was correct in granting a summary judgment based on the statute of limitations. Nardone v. Reynolds, 333 So. 2d 25 (Fla.1976); Robinson v. Sparer, 365 So. 2d 438 (Fla. 3d DCA 1978); MacMurray v. Board of Regents, 362 So. 2d 969 (Fla. 1st DCA 1978); Hill v. Virgin, 359 So. 2d 918 (Fla. 3d DCA 1978); McCloud v. Hall, 180 So. 2d 509 (Fla. 2nd DCA 1965); Buck v. Mouradian, 100 So. 2d 70 (Fla. 3d DCA 1958).
The final summary judgment under review is affirmed.
Affirmed.
. The infant was born on July 9, 1973. The instant action was not filed until April 25, 1978 (after a medical mediation proceeding had been terminated, which commenced on July 7, 1977). The applicable statute of limitation is Sec. 95.-11(6) Florida Statutes (1973) and the applicable time to commence the action was within 2 years of the infant’s birth. Homemakers, Inc. v. Gonzalez, 400 So. 2d 965 (1981).
SCHWARTZ, Chief Judge,
(dissenting).
While it is of course true, as the majority states, that Megan’s parents were immediately aware that there had been an extremely difficult delivery, I think that this fact is essentially irrelevant. This is because there is surely a genuine issue — indeed, the evidence is overwhelming to this effect — that neither the Moores nor any of the medical professionals knew or could have known that the baby had sustained any significant injury, and specifically permanent brain damage, until it was scientifically ascertained shortly before suit was filed. I very strongly dissent from the conclusion, inherent in the summary judgment below and its affirmance here, that one is obliged as a matter of law to bring an action before there is a clear indication that damages have even been sustained. Such a holding will require the bringing of protective actions in every case in which a supposed medical misadventure may have occurred, on the off chance that an injury will subsequently manifest itself. I had thought that, particularly in this field, the policy of this jurisdiction was to discourage such lawsuits, not encourage them. In my view, the judgment below should be reversed. Johnson v. Mullee, 385 So. 2d 1038 (Fla. 1st DCA 1980); see, School Board of Seminole County v. GAF Corp., 413 So. 2d 1208 (Fla. 5th DCA 1982); Swagel v. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981), and cases cited.
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Moore v. Morris, 475 So. 2d 666 (Fla. 1985)…ADKINS, Justice. We have before us a petition to review a decision of the Third District Court of Appeal reported as Moore v. Morris, 429 So. 2d 1209 (Fla. 3d DCA 1983). Conflict is alleged with decisions of this Court and other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. This is an appeal from the granting of a final summary judgment for the defendants in a m…
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Bismark Diaz & Bis D. Corp. v. Piquette, 496 So. 2d 239 (Fla. 3d DCA 1986)…at premature, possibly useless, litigation should be discouraged and that no cause of action should therefore be deemed to have accrued until the existence of redressable harm has been established. Birnholz v. Blake, 399 So. 2d 375; Moore v. Morris, 429 So. 2d 1209 (Fla. 3d DCA 1983) (Schwartz, C.J., dissenting), rev’d, 475 So. 2d 666 (Fla.1985). Since, under this holding, the instant action was timely commenced, the judgment is reversed and the cause remanded for further consistent proceedings. . See Dia…
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Elbert Brown and Edith Brown v. Armstrong World Indus., Inc., 441 So. 2d 1098 (Fla. 3d DCA 1983)…bove established as a matter of law that his cause of action is time barred by the statute of limitations. Nardone v. Reynolds, 333 So. 2d 25 (Fla.1976); Buck v. Mouradian, 100 So. 2d 70 (Fla. 3d DCA 1958); Morre, By and Through Moore v. Morris, 429 So. 2d 1209 (Fla. 3d DCA 1983); Roberts v. Casey, 413 So. 2d 1226 (Fla. 5th DCA 1982); Steiner v. [*1101] Ciba-Geigy Corporation, 364 So. 2d 47. (Fla. 3d DCA 1978).…
Authorities Cited
- Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)
- Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981)
- Buck v. Mouradian, 100 So. 2d 70 (Fla. 3d DCA 1958)
- Swagel v. Solomon B. Goldman, 393 So. 2d 65 (Fla. 3d DCA 1981)
- Sch. Bd. OF Seminole Cnty. v. GAF Corp., 413 So. 2d 1208 (Fla. 5th DCA 1982)
- Johnson v. Robert G. Mullee, M.D., 385 So. 2d 1038 (Fla. 1st DCA 1980)
- MacMURRAY v. Bd. OF Regents, 362 So. 2d 969 (Fla. 1st DCA 1978)
- Hill v. Virgin, 359 So. 2d 918 (Fla. 3d DCA 1978)
- Robinson v. Sparer, 365 So. 2d 438 (Fla. 3d DCA 1978)
- McCLOUD v. Hall, 180 So. 2d 509 (Fla. 2d DCA 1965)