FELIX DAMPF AND HELEN DAMPF, HIS WIFE, APPELLANTS,

v.

ALEX FURST, M.D.; FURST, ERBESFELD, JUDE AND BOE, M.D., P.A., A FLORIDA PROFESSIONAL ASSOCIATION; JAMES R. MARGOLIS, M.D.; RICHARD A. KREIGER, M.D.; MARGOLIS, SIMON, MIDWALL & KREIGER, M.D., P.A., A FLORIDA PROFESSIONAL ASSOCIATION; AND SOUTH MIAMI HOSPITAL, INC., A FLORIDA CORPORATION, APPELLEES

Fla. 3d DCA | 1993-09-21

No. 93-384

Before FERGUSON, COPE and GODERICH, JJ.

624 So. 2d 368 Florida District Court of Appeal, Third District (1993) Positive Treatment

Cited by 4 cases

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Holding

The court held that the medical malpractice statute of repose is constitutional and bars the plaintiff's action.

Facts & Procedural History

Plaintiff discovered he contracted HIV from a 1984 blood transfusion in 1990 and sued for medical malpractice, alleging lack of informed consent. The …

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Topics

Medical Malpractice Statute Of Repose Informed Consent Constitutionality Of Statutes Statute Of Repose

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Opinion of the Court

PER CURIAM.

Felix Dampf filed this medical malpractice action within two years after discovering, in 1990, that he had acquired the HIV virus from a 1984 blood transfusion during open-heart surgery. He alleged that the defendants knew of the substantial risks of contracting the deadly disease from the procedure but negligently failed to obtain his informed consent. Further, he alleged, the defendants ignored his request to obtain blood from his relatives if a transfusion were necessary. The trial court dismissed the complaint with prejudice on a finding that the action was barred by section 95.11(4)(b), the four-year medical malpractice statute of repose. We affirm.

Dampf attacks the statute as unconstitutional because it bars access to courts for a cause of action before the cause accrues. We affirm on the authority of recent supreme court cases upholding the constitutionality of the statute. See, e.g., Kush v. Lloyd, 616 So. 2d 416, 421 (Fla.1992) (medical malpractice statute represents a legislative determination that there must be an outer limit beyond which suit may not be instituted in order to hold down costs of professional liability insurance); University of Miami v. Bogorff, 583 So. 2d 1000, 1004 (Fla.1991) (statute of repose would still bar the plaintiffs action even if cause of action did not accrue before the repose period expired).

Appellant also contends the statutory requirement of section 766.203, that an affidavit of a medical expert opining that the defendant health provider was negligent be attached to the presuit notice, effectively bars access to courts because a plaintiff is required to present proof of a breach of duty and causal relationship before there is an opportunity to make discovery. In light of the affirmance on the first issue, we leave that question for another day.

Affirmed.

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Citator

Cited By

Damiano v. Grover McDANIEL, M.D., 689 So. 2d 1059 (Fla. 1997)

…have done so on several occasions. In each instance, these courts have held that the receipt of the tainted blood triggers the running of the four-year statute of repose regardless of when the victim gains knowledge of the infection. Dampf v. Furst, 624 So. 2d 368 (Fla. 3d DCA 1993), review denied, 634 So. 2d 623 (Fla. 1994); Padgett v. Shands Teaching Hosp. & Clinics, Inc., 616 So. 2d 467 (Fla. 1st DCA 1993); Doe v. Shands Teaching Hosp. & Clinics, Inc., 614 So. 2d 1170 (Fla. 1st DCA 1993); Whigham v. Shands…
Damiano v. Grover McDANIEL, M.D., 670 So. 2d 1198 (Fla. 4th DCA 1996)

…or of Appellees on the authority of Kush v. Lloyd, 616 So. 2d 415 (Fla.1992), Carr v. Broward County, 505 So. 2d 568 (Fla. 4th DCA 1987), approved, 541 So. 2d 92 (Fla.1989), University of Miami v. Bogorff, 583 So. 2d 1000 (Fla.1991), Dampf v. Furst, 624 So. 2d 368 (Fla. 3d DCA 1993), rev. denied, 634 So. 2d 623 (Fla.1994), Padgett v. Shands Teaching Hospital and Clinics, Inc., [*1199] 616 So. 2d 467 (Fla. 1st DCA 1993), Doe v. Shands Teaching Hospital, 614 So. 2d 1170 (Fla. 1st DCA), rev. denied, 626 So. 2d 2…

Authorities Cited

Univ. OF Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991)

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