ANARGYROS G. COMMENOS AND CAROLINE JOHNSON COMMENOS, APPELLANTS,
v.
FAMILY PRACTICE MEDICAL GROUP, INC., APPELLEE
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The court held that the amended complaint was not vulnerable to a motion to dismiss based on the statute of limitations because it did not allege the date of discovery of the alleged negligent acts.
Appellants alleged negligent medical treatment by appellee between specific dates. Appellee moved to dismiss, arguing the statute of limitations had e…
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SMITH, Chief Judge.
Appellants, Anargyros and Caroline Commenos, assert error on the part of the trial court in dismissing their amended complaint with prejudice. We reverse.
On May 19, 1986, appellants filed a complaint, and a subsequent amendment thereto, in which they alleged that appellee, Family Practice Medical Group, Inc., negligently treated Anargyros Commenos between December 23, 1983 and January 30, 1984. Appellee filed three motions to dismiss the complaint, the last one on the ground that the statute of limitations had expired before appellants filed their amended complaint with the good faith certificate attached to it. Thereafter the trial court entered its order dismissing the amended complaint with prejudice.
The critical dates for determining the statute of limitations period for medical malpractice actions are the date on which the negligent acts occurred and the date the acts were discovered or should have been discovered with the exercise of due diligence. Section 95.11(4)(b), Florida Statutes (1985). In the present case, the complaint alleges the treatment period but is silent as to the date on which the alleged negligent acts were discovered or should have been discovered. Without this latter information, the complaint was not vulnerable to a motion to dismiss based upon the statute of limitations. Glass v. Camara, 369 So. 2d 625 (Fla. 1st DCA 1979); Estate of James v. Martin Memorial Hosp., 422 So. 2d 1043 (Fla. 4th DCA 1982; Wimpey v. Sanchez, 386 So. 2d 1241 (Fla. 3rd DCA 1980), reversed in part, 409 So. 2d 20 (Fla. 1982).
Since we have reversed on this issue, it is unnecessary to address the other points raised by appellants.
WENTWORTH and JOANOS, JJ., concur.
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Elliot v. Mark V. Barrow, M.D., 526 So. 2d 989 (Fla. 1st DCA 1988)…984. These allegations are sufficient to create a jury question as to when the statute of limitations period began. When the statute of limitations began to run is not apparent on the face of the complaint. Commenos v. Family Practice Medical Group, 516 So. 2d 37 (Fla. 1st DCA 1987). Because this is a medical malpractice action for injuries and death pursuant to § 768.57, Fla.Stat. and not a wrongful death action brought under § 768.16, Fla.Stat., § 95.11(4)(d) is not applicable and the 90 day tolling period…
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Onika Williams v. The City OF Jacksonville (County of Duval), 191 So. 3d 925 (Fla. 1st DCA 2016)…ng the statute of limitations, with specific allegations in her complaint in order to survive a motion to dismiss. Estate of James v. Martin Mem. Hosp., 422 So. 2d 1043, 1045 (Fla. 4th DCA 1982); see also Commenos v. Family Practice Med. Grp., Inc., 516 So. 2d 37, 38 (Fla. 1st DCA 1987). The City’s -assertion in its motion— that Ms. Williams failed to file pre-suit notice of her claim with the City’s General Counsel’s office, as required by a city ordinance supplementing section 768.28(6)(a)— does hot appea…
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Jackson v. Lytle, 528 So. 2d 95 (Fla. 1st DCA 1988)…f the surgical procedures was undisclosed to and unknown by them until that time. These allegations dispute a conclusion that a statute of limitations defense is apparent on the face of the complaint. Commenos v. Family Practice Medical Group, Inc., 516 So. 2d 37 (Fla. 1st DCA 1987). It has been stressed that the knowledge of physical injury alone, without knowledge that it resulted from a negligent act, does not trigger the statute of limitations. Elliot v. Barrow; Florida Patient’s Compensation Fund v. Sit…
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
- Olivene G. Glass v. Camara, 369 So. 2d 625 (Fla. 1st DCA 1979)
- Gabriel A. Sanchez, M.D. v. Wimpey, 409 So. 2d 20 (Fla. 1982)
- Morris Wimpey et ux. v. Gabriel A. Sanchez, M.D., 386 So. 2d 1241 (Fla. 3d DCA 1980)
- The Est. OF James James v. Martin Mem'l Hosp., 422 So. 2d 1043 (Fla. 4th DCA 1982)