FRANCES KAGAN AND MURRAY KAGAN, HER HUSBAND, APPELLANTS,
v.
EDWARD J. POLLOCK, M.D.; MEDICAL IMAGING CENTER OF BOCA RATON, LTD.; JONATHAN WIDEROFF, M.D.; COLLETTA, WIDEROFF, KLEIN & ROSS, M.D.S., P.A.; KATHY JEAN SCHILLING, M.D.; BOCA RATON COMMUNITY HOSPITAL, INC.; PETER A. TUBY, M.D.; PETER A. TUBY, M.D., P.A., AND IRVING R. BESMAN, M.D., APPELLEES

Fla. 4th DCA | 1994-06-08
No. 93-0834
DELL, C.J., and STEVENSON, J„ concur.
638 So. 2d 151 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 2 cases

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Synopsis

Frances and Murray Kagan appealed a summary judgment dismissing their medical malpractice action against Dr. Irving Besman on statute of limitations grounds. The appellate court reversed, holding that the Kagans' automatic 90-day extension of the statute of limitations under Florida law applied even though Dr. Besman was not specifically named in the original extension petition.


Holding

The court held that the automatic 90-day extension of the statute of limitations applies regardless of whether a defendant is specifically named in the extension petition. Section 766.104(2) contains no requirement that a defendant be specifically named, and the court refused to read such a requirement into the statute. Therefore, Dr. Besman's statute of limitations defense was vitiated by the extension.


Headnotes

[1] A ninety-day extension of the statute of limitations for medical malpractice actions is automatically granted upon petition to the clerk of court and payment of a filing…

[2] A petition for an extension of the statute of limitations in a medical malpractice action does not require the specific naming of all potential defendants to be effective…

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Key Quotes

“There is no requirement in this statutory section that a defendant must be specifically named in the petition; and we will not read such a requirement, limiting the resolution of claims on the merits, into the statute.”

The court's key holding that the statute does not require naming specific defendants in the extension petition.

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Facts & Procedural History

Frances Kagan suffered an injury and was discharged from the hospital in February 1990. On May 1, 1991, the Kagans sent a notice of intent to initiate…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

Frances and Murray Kagan appeal the lower court’s order granting a final summary judgment on the grounds that the statute of limitations in a medical malpractice action had expired. We reverse, as the Kagans were granted an extension of the statute of limitations pursuant to section 766.104(2), Florida Statutes (1991).

On May 1, 1991, Frances and Murray Ka-gan sent a notice of intent to initiate litigation for medical malpractice to various potential defendants. A notice of intent was not mailed to the appellee, Dr. Irvin Besman, at this time. On May 3,1991, the Kagans filed and were granted a ninety (90) day extension of the statute of limitations pursuant to section 766.104(2), Florida Statutes (1991). This petition for extension included the names of various potential defendants, but again did not include the name of Dr. Besman. On April 20, 1992, the Kagans did finally send a notice of intent to Dr. Besman and his professional association, Irvin Besman, M.D., P.A. On May 11, 1992, a second amended complaint in the previously commenced medical negligence action was filed; it included Dr. Besman as a defendant for the first time. In a motion for summary judgment filed on January 22, 1993, Dr. Besman alleged that the amended complaint filed on May 11,1992, was filed after the expiration of the two-year statute of limitations in a medical malpractice action.1 The lower court agreed and granted a final summary judgment in Dr. Besman’s favor. We disagree, and thus reverse the lower court’s order. It is undisputed that Frances Kagan was aware of her injury at the time she was discharged from the hospital in February 1990, and that a strict application of the statute of limitations would result in the, determination that it expired as to the defendant no later than February 20, 1992. However, since the Kagans were granted a ninety (90) day extension of the statute of limitations pursuant to section 766.104(2), it did not expire until May 20, 1992, which effectively vitiates Dr. Besman’s statute of limitations defense. Section 766.04(2), provides in pertinent part:

(2) Upon petition to the clerk of the court where the suit will be filed and a payment to the clerk of a filing fee, not to exceed $25, established by the chief judge, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

There is no requirement in this statutory section that a defendant must be specifically named in the petition; and we will not read such a requirement, limiting the resolution of claims on the merits, into the statute. Accordingly, we find that the lower court erred in granting the motion for summary judgment, and reverse on this basis.

The Kagans also argue that the statute of limitations would not have barred their action against Besman as the statute of limitations was tolled. However, it is not necessary to address this issue in light of our determination that it was extended.

DELL, C.J., and STEVENSON, J„ concur. . Section 95.11(4)(b), Florida Statutes (1991), provides in pertinent part:

An action for medical malpractice shall be commenced within two (2) years from the time the incident giving rise to the action occurred or within two (2) years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.

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Citator

Cited By

  • …tomatic ninety-day extension under section 766.104(2) in part because their petition did not name Dr. Thompson or Urology Associates of North Central Florida as a potential defendant. We agree with the Fourth District's analysis in Kagan v. Pollock, 638 So. 2d 151, 152 (Fla. 4th DCA 1994), where after carefully considering the language in section 766.104(2), the court held that "[t]here is no requirement in this statutory section that a defendant must be specifically named in the petition; and we will not rea…

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