JOSEPHINE SHAPIRO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE SHAPIRO, AND JOSEPHINE SHAPIRO, INDIVIDUALLY, APPELLANTS,
v.
JAMES BARRON, M.D., ET AL., APPELLEES

Fla. 4th DCA | 1989-02-15
No. 87-1530
GLICKSTEIN and GARRETT, JJ., and KAHN, MARTIN D., Associate Judge, concur.
538 So. 2d 1319 Florida District Court of Appeal, Fourth District (1989) Negative Treatment
Cited by 14 cases

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.

Synopsis

In a medical malpractice suit, the trial court granted summary judgment for the defendant physician based on the statute of limitations, concluding the plaintiffs knew or should have known the cause of injury by December 31, 1979. The appellate court reversed, holding that genuine issues of material fact existed regarding when the plaintiffs actually knew the cause of injury, precluding summary judgment.


Holding

The court reversed and held that a genuine issue of material fact exists regarding when the plaintiffs knew or should have known that the complications were caused by Dr. Barron's negligence, precluding summary judgment. Knowledge of physical injury alone, without knowledge that it resulted from a negligent act, does not trigger the statute of limitations.


Headnotes

[1] Knowledge of a physical injury alone, without knowledge that it resulted from a negligent act, does not trigger the statute of limitations.

[2] When ruling on a motion for summary judgment, the non-moving party's testimony and reasonable inferences therefrom must be accepted as true.

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Key Quotes

“knowledge of physical injury alone, without the knowledge that it resulted from a negligent act, does not trigger the statute of limitations”

Establishes the legal standard for when the statute of limitations begins to run in medical malpractice cases

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Facts & Procedural History

Lee Shapiro underwent surgery in August 1979. His eyesight deteriorated in October 1979, and blindness was diagnosed by December 31, 1979. Mrs. Shapir…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The trial court granted a summary judgment in favor of the appellee, Doctor Barron, finding that the appellants, Lee (now deceased) and Josephine Shapiro knew what caused Lee’s blindness and other complications, at the latest, on December 31, 1979. Therefore, the court concluded, appellant’s medical malpractice suit, filed January 29,1982, was barred by the applicable statute of limitations.

Mr. Shapiro underwent surgery in August of 1979. Mrs. Shapiro was in communication with her husband’s nephew-in-law, Dr. Emil Gutman (a radiologist practicing in Ohio), before and after the surgery. After the surgery, Dr. Gutman travelled to Florida and viewed Mr. Shapiro’s medical charts and records, even recommending to the treating doctors to call in a specialist; however, he denied giving Mrs. Shapiro any medical advice as to the cause of the blindness or other complications.

The medical records indicate Mr. Shapiro’s eyesight began to deteriorate in October of 1979, and his blindness was diagnosed by December 31, 1979. After Mr. Shapiro’s discharge, Dr. Gutman contacted a Dr. Kunin, who, in January of 1982, rendered the opinion that Dr. Barron’s failure to use antibiotics preoperatively caused Mr. Shapiro’s blindness.

While the complications arising from Mr. Shapiro’s surgery were obvious to all, at what time the Shapiros had or should have had knowledge of the cause of such complications becomes the focal point of this opinion, since knowledge of physical injury alone, without the knowledge that it resulted from a negligent act, does not trigger the statute of limitations. Moore v. Morris, 475 So. 2d 666 (Fla.1985).

Recognizing knowledge of the contents of medical charts and records must be im: puted to the plaintiffs, Frankowitz v. Propst, 489 So. 2d 51 (Fla. 4th DCA 1986); recognizing Dr. Gutman was available to the plaintiffs as an independent medical advisor throughout the hospitalization; and recognizing Dr. Kunin did not base his opinion on any information not available to the appellants on December 31, 1979, we, nevertheless, reverse.

Judging the credibility of witnesses or weighing the evidence are not proper subjects of a motion for summary judgment. When ruling on the summary judgment motion, Mrs. Shapiro’s testimony relating she was told her husband’s condition was caused by tubes dislodging from his stomach during his postoperative hospital recovery period, together with the reasonable inference that flows therefrom that she believed such explanation until the rendering of Dr. Kunin’s opinion, must be accepted as true; as must, Dr. Gutman’s testimony that he never gave any medical advice as to causation to the Shapiros. Moore, 475 So. 2d at 667. This court thereupon concludes that a genuine issue of material fact, which has a direct bearing on when the statute of limitations began to run, exists as to when the Shapiros knew or should have known that Mr. Shapiro’s complications were caused by Dr. Barron’s failure to use antibiotics.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

GLICKSTEIN and GARRETT, JJ., and KAHN, MARTIN D., Associate Judge, concur.


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Citator

Cited By

  • Janies Barron, M.D. v. Shapiro, 565 So. 2d 1319 (Fla. 1990)
    …GRIMES, Justice. We review Shapiro v. Barron, 538 So. 2d 1319 (Fla. 4th DCA 1989), because of its [*1320] conflict with Nardone v. Reynolds, 333 So. 2d 25 (Fla.1976). Our jurisdiction is based on article V, section 3(b)(3), of the Florida Constitution. On August 17, 1979, Dr. James Barron operated upon Lee Sh…
  • Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344 (Fla. 3d DCA 1999)
    …court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding.”); Shapiro v. Barron, 538 So. 2d 1319, 1320 (Fla. 4th DCA 1989) (reasoning that “[j]udging the credibility of witnesses or weighing the evidence are not proper subjects of a motion for summary judgment.”); Kuczkir v. Martell, 480 So. 2d 700, 701 (Fla. 4th DCA 1985) (stating that “[wjher…
  • Jackson v. George A. Georgopolous, M.D., 552 So. 2d 215 (Fla. 2d DCA 1989)
    …sulting in the injury. Other Fourth District Court of Appeal cases which contain language similar to some of the above-quoted language in Sitomer can be similarly harmonized with the result in this case and with Moore and Nardone: Shapiro v. Barron, 538 So. 2d 1319 (Fla. 4th DCA 1989) (“[Kjnowledge of physical injury alone, without the knowledge that it resulted from a negligent act, does not trigger the statute of limitations”; the holding in Shapiro, consistent with the result in this case and with Moore and…

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