NETTIE STEIN AND ARTHUR STEIN, APPELLANTS.
v.
JEFFREY FEINGOLD, (DR.) AND MORTON REISS, D.D.S., APPELLEES
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Stein filed a negligence counterclaim and third-party claim against two doctors (Feingold and Reiss) who had sued her for unpaid medical bills. The trial court dismissed both claims on procedural grounds, but the appellate court reversed, holding that there was no statute of limitations defense to a compulsory counterclaim and that material factual disputes existed regarding when the malpractice was discovered.
The court reversed the dismissals, holding that: (1) there is no statute of limitations defense to a compulsory counterclaim; (2) even if such a defense existed, there were disputed questions of material fact regarding when the patient learned of the malpractice; and (3) the affidavit of the independent expert was timely filed because the initial complaint was timely.
[1] A compulsory counterclaim is not subject to a statute of limitations defense.
[2] A statute of limitations defense may not be available when there is a disputed question of material fact as to when the patient learned of the malpractice.
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Join FLexlaw to unlock all legal intelligence“There is no statute of limitation defense as to a compulsory counterclaim”
Establishes the primary legal holding that compulsory counterclaims are exempt from statute of limitations defenses
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Join FLexlaw to unlock all legal intelligenceDr. Feingold, through his associate Dr. Reiss, rendered medical services to Stein. Feingold subsequently sued Stein for the balance of the bill. Stein…
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BARKDULL, Judge.
A medical practitioner, Feingold, through an associate, Reiss, rendered medical servic es to Stein. Feingold thereafter sued Stein for the balance of a bill for services rendered. Stein filed a compulsory counterclaim alleging negligence in the medical services performed by the agent, and filed a third party claim against the associate Reiss for the same negligence. At the time of the filing of the third party claim Stein also filed notices of intent to suit as to both doctors. She later filed a supporting affidavit of an independent medical practitioner as to the negligence. The trial court granted a summary judgment to the medical provider on the compulsory counterclaim, and granted the associate’s motion to dismiss as to the third party action. We reverse.
There is no statute of limitation defense as to a compulsory counterclaim, Johnson v. Allen, 621 So. 2d 507 (Fla. 2d DCA 1993); Allie v. Ionata, 503 So. 2d 1237 (Fla.1987), second, even if such a defense was available there is a disputed question of material fact as to when the patient actually learned of the malpractice, Tanner v. Hartog, 618 So. 2d 177 (Fla.1993); Kahler v. Kent, 616 So. 2d 601 (Fla. 4th DCA 1993), and third, the affidavit of the independent expert was timely filed when the initial complaint was timely. Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA 1992), rev. denied, 604 So. 2d 487 (Fla.1992); Hospital Corp. of America v. Lindberg, 571 So. 2d 446 (Fla.1990).
Under at least one view of the facts, the initial third party complaint was within the statute of limitation period. Kahler v. Kent, supra.
Therefore the compulsory counterclaim and third party claim should not have been disposed upon grounds of failure to timely file a notice of claim or intent to suit, on the affidavit of the independent medical examiner. Johnson v. Allen, supra; Allie v. Ionata, supra.
Therefore we reverse the summary judgment as to Dr. Feingold and the motion to dismiss the third party claim as to Dr. Reiss and return the matter to the trial court for further proceedings not inconsistent with this opinion.
Reversed and remanded with directions.
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Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)…his claim. See Suarez v. St. Joseph’s Hosp., 634 So. 2d 217 (Fla. 2d DCA March 23, 1994) (failure to verify medical opinion “not fatal if compliance is secured prior to the expiration of the appropriate statute of limitations.”); Stein v. Feingold, 629 So. 2d 998 (Fla. 3d DCA 1993) (affidavit of expert witness timely filed when filed within statute of limitations period). The judicial gloss that the majority applies to section 766.202(4) controls only when the plaintiff has faded to satisfy the presuit requi…1 / 2
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Carl Citron, M.D. v. Shell, 689 So. 2d 1288 (Fla. 4th DCA 1997)…42 So. 2d 48 (Fla. 1st DCA 1994), case dismissed, 657 So. 2d 1163 (Fla.1995); Suarez v. St. Joseph’s Hosp., Inc., 634 So. 2d 217 (Fla. 2d DCA 1994); Miami Physical Therapy Assoc., Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994); Stein v. Feingold, 629 So. 2d 998 (Fla. 3d DCA 1993); Ragoonanan v. Associates in Obstetrics & Gynecology, 619 So. 2d 482, 484 (Fla. 2d DCA 1993); Gargano v. Costarella, 618 So. 2d 786 (Fla. 5th DCA 1993); and Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA), rev. denied, 604 So…
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Julieta Suarez v. ST. Joseph's Hosp., Inc., 634 So. 2d 217 (Fla. 2d DCA 1994)…omplaint were filed, that, in itself, is not fatal if compliance is secured prior to the expiration of the appropriate statute of limitation. See Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So. 2d 482 (Fla. 2d DCA 1993); Stein v. Feingold, 629 So. 2d 998 (Fla. 3d DCA 1993); Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA 1992), rev. denied, 604 So. 2d 487 (Fla.1992). There is no contention that Dr. Lehrer’s affidavit was not timely. Rather, St. Joseph’s argues that the affidavit was not sufficie…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tanner v. Ellie Hartog, M.D., 618 So. 2d 177 (Fla. 1993)
- Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987)
- Hosp. Corp. OF Am. v. Lindberg, 571 So. 2d 446 (Fla. 1990)
- Stebilla v. Anthony J. Mussallem, M.D., 595 So. 2d 136 (Fla. 5th DCA 1992)
- Johnson v. Allen, 621 So. 2d 507 (Fla. 2d DCA 1993)
- Kahler v. C. Harry Kent, M.D., 616 So. 2d 601 (Fla. 4th DCA 1993)