ETHEL STONE LEVY, AS EXECUTRIX OF THE ESTATE OF HOWARD LEVY, DECEASED, AND ETHEL STONE LEVY, AS WIDOW OF HOWARD LEVY, DECEASED, APPELLANTS,
v.
MICHAEL J. KIRK, M.D., APPELLEE
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The court held that the defendant doctor's absence from the state could toll the statute of limitations, and that the alleged abandonment of the patient presented a triable issue of fact regarding proximate cause, precluding summary judgment.
A patient died after being hospitalized, and the defendant doctor was sued for wrongful death and medical malpractice. The trial court granted summary…
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This case calls for review of an adverse summary final judgment rendered in favor of the defendant medical doctor in a malpractice action.
The complaint alleged two causes of action: 1. Wrongful death and, 2. Negligence [medical malpractice]. The summary final judgment appears to have been rendered because, among other things, the statute of limitations had run as to the wrongful death and no triable issue of negligence had been demonstrated. We reverse.
It affirmatively appears from the record, or at least there is a triable issue as to this fact, that the defendant was without the State of Florida between the occurrence of the cause of action and the commencement of the proceeding. Therefore, if he was in fact out of the State, the provisions of § 95.06 Fla.Stat., F.S.A., would toll the running of the statute of limitations.
Generally, in a medical malpractice case, it is necessai'y to have [either by deposition, affidavit, pleading, or otherwise] sufficient allegations of fact which would be admissible in evidence to establish whether or not the physician performed his duty of care in a manner commensurate with the standards of the community. See: Couch v. Hutchison, Fla.App.1961, 135 So.2d 18; Cook v. Lichtblau, Fla.App.1962, 144 So.2d 312; Holl v. Talcott, Fla.App.1965, 171 So.2d 412. However, in the instant case, where the charge is in the abandonment of the patient after causing his admission into the hospital and the prescribing of certain medications, examinations, tests, etc., it is apparent from the hospital records and from the doctor’s own admissions that he failed to personally observe the patient [although he was in the hospital] and he failed to review the results of the tests and examinations for several days.1 Therefore, even though these facts are not contradicted, they present a triable issue as to whether or not this alleged abandonment was the proximate cause of the demise of the deceased. See: Vihon v. McCormick, Fla.App.1958, 109 So.2d 400; Smith v. City Products Corp., Fla.App.1962, 147 So.2d 590; and also Town of Mount Dora v. Bryant, Fla.App.1961, 128 So.2d 4, wherein the following is found:
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“ * * * It is worthy of constant judicial observance that even where the physical facts are apparently uncontradicted it does not necessarily follow that there is no genuine material issue of factual character for further determination. This is so because in some circumstances un-contradicted facts are susceptible of conflicting factual inferences neither of which should be prejudged unreasonable as a matter of law. In such case the evidence should be submitted to the jury under proper instructions as to the law. * * * »
* ‡ * Stfi %
It is not absolutely necessary to have expert testimony to determine a medical malpractice case. See: Montgomery v. Stary, Fla.1955, 84 So.2d 34; Dohr v. *403Smith, Fla.1958, 104 So.2d 29; Atkins v. Humes, Fla.App.1958, 107 So.2d 253; 141 A.L.R., page 12 and cases cited therein. It is the function of a jury to determine whether the neglect by a physician to attend a patient was the proximate causé of the patient’s death or complicated illness. See: Saunders v. Lischkoff, 137 Fla. 826, 188 So. 815; Baldor v. Rogers, Fla.1954, 81 So.2d 658, 55 A.L.R.2d 453, 13 A.L.R.2d, p. 14, Anno, and cases cited therein. See also: 57 A.L.R.2d 432, Anno.: Physician-Abandonment of Case; 25 Fla.Jur., Physicians and Surgeons, §§ 81, 88, 89.
Therefore, for the reasons above stated, the summary final judgment here under review is hereby reversed, and this matter is returned to the trial court for further proceedings not inconsistent herewith.
Reversed and remanded, with directions.
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Alpha Sheffield and Wesley Sheffield v. Albert J. Davis, M.D. & Albert J. Davis, M.D. & Assocs., P.A., 562 So. 2d 384 (Fla. 2d DCA 1990)…ce which caused the tolling to occur has passed. See, e.g., First Federal Sav. & Loan Ass’n of Wisconsin v. Dade Federal Sav. & Loan Ass’n, 403 So. 2d 1097 (Fla. 5th DCA 1981) (fraudulent concealment as tolling statute of limitations); Levy v. Kirk, 187 So. 2d 401 (Fla. 3d DCA 1966) (absence from state as tolling statute of limitations); Gillespie v. Florida Mortgage & Inv. Co., 96 Fla. 35, 117 So. 708 (1928) (incompetency as basis for tolling statute of limitations). At that point, the statute commences to r…
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Giallanza v. Sands, 316 So. 2d 77 (Fla. 4th DCA 1975)…proximate cause of the death of decedent. The nature of the factual issues as presented precluded a determination at a summary proceeding and necessitated a full [*78] exploration by a trial. Lab v. Hall, supra; see also Levy v. Kirk, Fla.App.1966, 187 So. 2d 401. The sole and only appellate issue presented is whether there exists genuinely triable issues of fact so as to preclude a summary disposition permitting a litigant to have his day in court. The legal issue presented in this appeal is governed by ap…
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Geraldine S. Furnari and Richard v. Furnari, 242 So. 2d 742 (Fla. 4th DCA 1971)…on of an approved medical treatment, jurors of ordinary intelligence, sense and judgment are capable, in many cases, of reaching a conclusion without the aid of expert testimony. Atkins v. Humes, Fla.1959, 110 So. 2d 663; Levy v. Kirk, Fla.App.1966, 187 So. 2d 401; Cook v. Lichtblau, Fla.App.1965, 176 So. 2d 523; Brown v. Swindal, Fla.App.1960, 121 So. 2d 38. The difficulty arises in determining whether the facts in a specific case are such as to bring that case within the principle. Dr. Lurie saw Mrs. Furna…
Authorities Cited (11 total)
- Montgomery v. Stary, 84 So. 2d 34 (Fla. 1955)
- Saunders v. Lischkoff, 137 Fla. 826 (Fla. 1939)
- Town OF Mount Dora v. Bryant, 128 So. 2d 4 (Fla. 2d DCA 1961)
- Dohr v. Smith, 104 So. 2d 29 (Fla. 1958)
- Holl v. Talcott, 171 So. 2d 412 (Fla. 3d DCA 1965)
- Smith v. City Prods. Corp., 147 So. 2d 590 (Fla. 1st DCA 1962)
- Atkins v. Humes, 107 So. 2d 253 (Fla. 2d DCA 1958)
- Buffalo Indus. Bank v. Rose, 109 So. 2d 400 (Fla. 3d DCA 1959)
- Baldor v. Rogers, 81 So. 2d 658 (Fla. 1954)
- Cook v. Lichtblau, 144 So. 2d 312 (Fla. 2d DCA 1962)