Allen v. Orlando Regional Medical Center

606 So. 2d 665, 1992 Fla. App. LEXIS 9889, 1992 WL 228916
CourtDistrict Court of Appeal of Florida
DecidedSeptember 18, 1992
Docket91-2333
StatusPublished
Cited by6 cases

This text of 606 So. 2d 665 (Allen v. Orlando Regional Medical Center) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Orlando Regional Medical Center, 606 So. 2d 665, 1992 Fla. App. LEXIS 9889, 1992 WL 228916 (Fla. Ct. App. 1992).

Opinion

606 So.2d 665 (1992)

Gregory ALLEN, etc., et al., Appellants,
v.
ORLANDO REGIONAL MEDICAL CENTER, et al., Appellees.

No. 91-2333.

District Court of Appeal of Florida, Fifth District.

September 18, 1992.

Martin Trpis, Bethesda, Maryland, and John Militana of Militana, Militana & Militana, Miami, for appellants.

Richard W. Bates and Eric D. Struble of Mateer, Harbert & Bates, P.A., Orlando, for appellees.

DAUKSCH, Judge.

This is an appeal from a final order, the trial court having previously granted appellees Orlando Regional Medical Center's ("ORMC") and Dr. Arnold Lazar's ("Lazar") motions for summary judgment. Appellees asserted below that they were entitled to summary judgment based on the expiration of the statute of limitations in this medical malpractice case, but we disagree and reverse.

Appellants' Second Amended Complaint, filed February 22, 1988,[1] alleges that on *666 November 5, 1983, appellant Sandra Allen was admitted to ORMC in active labor and that early in the afternoon, the delivering physician, Lazar, delivered a baby boy, Gregory Allen. The complaint alleged that ORMC staff failed to properly monitor fetal well-being during the delivery and, when the child was born, the initial impression was that the baby was premature, suffering from perinatal asphyxia, pneumonia, and hypovolemia. The complaint alleged that Gregory showed evidence of cerebral palsy and demonstrated psychomotor retardation with dysplegia, blindness and marked spasticity. In particular, appellants further alleged:

12. During the time of the care and treatment of SANDRA and GREGORY, the Defendants in this matter, each and every one, represented to the Plaintiffs that GREGORY'S injuries were residuals of normal events. Plaintiffs did not know that Cerebral Palsy may be caused by negligence of health care providers.
* * * * * *
14. The Plaintiffs relied upon the representations of the Defendants, each and every one, and did not discover, nor could have discovered, until late spring of 1986, that GREGORY'S injuries had been caused by negligence of the Defendant health care providers.

Appellants' count against appellee Lazar alleged that he knew or should have known the proper and acceptable methods of diagnosing Gregory's condition, yet failed to fully investigate and analyze the source of Sandra Allen's vaginal bleeding and failed to adequately monitor the fetus. The count against appellee ORMC made similar claims.

Appellees filed a motion for summary judgment, adopting the motion of another defendant who had alleged:

Since plaintiffs discovered during late spring 1986 that the child's injuries were allegedly caused by the negligence of the defendants, this occurred before the expiration of the four-year statute of repose. However, since Sandra Allen had notice of the injuries of her child immediately after birth, the limitations period for this action commenced at that time. See Barron v. Shapiro, 565 So.2d 1319 (Fla. 1990 and University of Miami v. Bogorff, [583 So.2d 1000 (Fla. 1991)].

Appellants responded that the statute of limitations did not proceed to run from the time Sandra Allen became aware of Gregory's brain hemorrhage at the child's birth, because there was nothing about a hemorrhage in the brain of a prematurely born infant which suggests that there was medical negligence or an injury caused by medical negligence. Appellants relied upon Moore v. Morris, 475 So.2d 666 (Fla. 1985).

The issue in this appeal is when the statute of limitations began to run. In Nardone v. Reynolds, 333 So.2d 25, 32 (Fla. 1976)[2] the Supreme Court of Florida held "the statute of limitations in a malpractice suit commences either when the plaintiff has notice of the negligent act giving rise to the cause of action or when *667 the plaintiff has notice of the physical injury which is the consequence of the negligent act." See also Moore v. Morris, 475 So.2d at 667. The court reiterated this rule in Barron and Bogorff, notwithstanding various changes in the statute, but this court has recently found that "applying the rule of Barron and Bogorff to the widely divergent fact patterns presented by such cases is not easy." Norsworthy v. Holmes Regional Medical Center, 598 So.2d 105, 106 (Fla. 5th DCA 1992).

In Norsworthy, this court noted that Barron and Bogorff can be broadly read to mean that any adverse event arising in the course of medical care triggers the statute of limitations. Norsworthy, 598 So.2d at 107. This is the main thrust of appellees' argument in support of affirmance: They note that both in their motion in opposition to summary judgment and in the initial appellate brief, appellants admit that Sandra Allen knew her son's condition which gave rise to this action shortly after the injury occurred, that is, shortly after Gregory was born in late 1983. But this court in Norsworthy stated that it believed Bogorff and Barron

simply stand for the proposition that when the nature of the bodily damage that occurs during medical treatment is such that, in and of itself, it communicates the possibility of medical negligence, then the statute of limitations begins to run. On the other hand, if there is nothing about an injury that would communicate to a reasonable lay person that the injury is more likely a result of some failure of medical care than a natural occurrence that can arise in the absence of medical negligence, the knowledge of the injury itself does not necessarily trigger the running of the statute of limitations.

Norsworthy, 598 So.2d at 107. This court emphasized it did not believe the supreme court in Barron intended to say that knowledge of physical injury alone will always trigger the statute of limitations, but rather merely meant

... it is erroneous to suppose that knowledge of injury alone cannot trigger the statute. Some injuries, as in Nardone, Barron and Bogorff, speak for themselves and supply notice of a possible invasion of legal rights.

Norsworthy, 598 So.2d at 108.

The injuries alleged to have been sustained by Gregory Allen do not appear to "speak for themselves" or to suggest that his "injury" was the "result of anything other than natural consequences of a recognized medical treatment competently performed." Norsworthy, 598 So.2d at 108. Appellants alleged below that the appellees represented to them that Gregory's injuries "were residuals of normal events," the result of his premature birth. Appellants also alleged they did not know, and apparently were not told, as discussed below, that cerebral palsy may be caused by the negligence of health care providers. Appellants contend their expert witness would testify that while brain hemorrhages occur spontaneously in a certain percentage of premature births, certain acts alleged to have occurred in this case can cause a brain hemorrhage or substantially increase the likelihood of its occurrence or its severity, including failure to adequately monitor labor and diagnose and treat fetal distress, improper intubation, failure to adequately monitor blood gas levels and failure to timely diagnose and correct misintubation and perinatal asphyxia.

In Moore v. Morris, which the supreme court reaffirmed in Bogorff,

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606 So. 2d 665, 1992 Fla. App. LEXIS 9889, 1992 WL 228916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-orlando-regional-medical-center-fladistctapp-1992.