Baxter v. Northrup

128 So. 3d 908, 2013 WL 6687846, 2013 Fla. App. LEXIS 20097
CourtDistrict Court of Appeal of Florida
DecidedDecember 20, 2013
DocketNo. 5D12-2913
StatusPublished
Cited by16 cases

This text of 128 So. 3d 908 (Baxter v. Northrup) 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
Baxter v. Northrup, 128 So. 3d 908, 2013 WL 6687846, 2013 Fla. App. LEXIS 20097 (Fla. Ct. App. 2013).

Opinion

TORPY, C.J.

Charles N. Baxter, Jr., appeals a final judgment entered in favor of Tod Northrup, D.O., and Flagler Hospital, Inc. (collectively “Appellees”) in a medical malpractice case. He contends that the trial court erred by entering summary judgment in favor of Appellees on their statute of limitations defenses. Concluding that a question of fact exists as to when Mr. Baxter knew or should have known of the possibility of medical negligence, we reverse.

Dr. Northrup performed left hip replacement surgery on Mr. Baxter at Fla-gler Hospital on November 2, 2004. The next day, Mr. Baxter noticed that his leg was numb and that he had a foot drop. Dr. Northrup and medical staff told him that these symptoms would abate after a period of physical therapy. Based upon these assurances, Mr. Baxter continued treatment with Dr. Northrup. When Mr. Baxter’s symptoms did not improve, on April 6, 2005, Mr. Baxter saw neurologist Dr. Potter, who advised him that his neurological deficit was likely permanent. Mr. Baxter thereafter sought legal counsel, served a statutory notice of intent on June 25, 2007, and filed the instant malpractice action.

Appellees moved for summary judgment, asserting that the notice of intent and lawsuit were untimely because the statute of limitations, with tolling, had expired on February 1, 2007. They argued that the statute of limitations began to run on November 8, 2004, the day when Mr. Baxter became aware that he had, foot drop. The trial court agreed. It granted summary judgment in favor of Appellees, concluding that the statute of limitations commenced to run on November 2, 2004, “upon the Plaintiffs discovery of the injury itself....”

A trial court’s ruling on a motion for summary judgment is subject to a de novo standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). It is axiomatic that “[s]ummary judgment is proper [only] if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. When expiration of the statute of limitations is the basis of a summary judgment motion, the movant has the burden of showing “conclusively that there was no genuine issue of fact that the statute of limitations had expired before the filing of the [complaint].” Green v. Adams, 343 So.2d 636, 637 (Fla. 4th DCA 1977). An appellate court must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party; if the slightest doubt exists, summary judgment must be reversed. Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006).

[910]*910Pursuant to section 95.11(4)(b), Florida Statutes, an action for medical malpractice must be commenced “within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.1 The dispositive question in this case is when Mr. Baxter discovered or should have discovered that there was a reasonable possibility that medical malpractice caused his injury. The trial court determined that this occurred when Mr. Baxter discovered the foot drop on either the day of or the day following his surgery. To sustain this conclusion under our de novo review standard, we must agree that “[t]he nature of the injury, standing alone, .... [was] such that it communicate[d] the possibility of medical negligence.... ” Tanner v. Har-tog, 618 Solid 177, 181 (Fla.1993). In other words, we must determine that the nature of the injury itself communicated to the lay patient an injury caused by malpractice, rather than one naturally caused. See Cunningham v. Lowei~y, 724 So.2d 176, 179 (Fla. 5th DCA 1999) (involving delay in diagnosing staphylococcus infection during treatment for back pain). Where the injury is “obviously” the product of malpractice, such as when the wrong limb is amputated, the statute will commence to run when the patient discovers the injury. Rodriquez v. Saenz, 866 So.2d 184, 187 (Fla. 5th DCA 2004). This is because the injury “speaks for itself,” communicating both the fact of injury and the fact of malpractice. Cunningham, 724 So.2d at 179. In less than obvious cases, the resolution of this question is “very often” a question of fact for the jury. Id. (citing Tanner, 618 So.2d at 182).

Here, we cannot conclude as a matter of law that Mr. Baxter’s post-surgical symptoms were such that medical malpractice was a reasonable possibility. Dr. Northrup himself testified in his deposition that foot drop is a known complication of total hip replacement surgery that is specifically discussed with the patient before surgery. According to Dr. Northrup’s interrogatory answers, “[a]n appreciable percentage of foot-drop symptoms occurring after hip replacement cannot be assigned to a cause.” As of the date of his deposition, Dr. Northrup still did not know the cause of Mr. Baxter’s foot drop. In the opinion of one of the defense experts, a physician, Mr. Baxter’s foot drop was “a known and accepted risk of this particular surgery, and it was not due to any negligence on the part of the defendants.” It is difficult to envision how a layperson can be charged with the knowledge that particular symptoms suggest an act of negligence when medical professionals, who scrutinize the case with the clarity of hindsight, conclude that the symptoms are the product of unexplained, natural causes.

In deciding this issue, the jury can also take into consideration the post-operative treatment and discussions that occurred. Mr. Baxter specifically pled that he “relied upon the representation of the defendants as to the plaintiffs post-operative surgical symptomatology as being the normal and customary sequelae of the subject surgical procedure.” This allegation was not negated in the application for summary judgment, and Mr. Baxter’s sworn interrogatory answers support this assertion. As we have previously observed:

[I]t would seem that if the law is to place on a layperson ... the burden of appreciating malpractice at ... [a par[911]*911ticular moment when the statute is said to commence], then the law must by rights impose on the physician a concomitant duty of disclosure.

Cunningham, 724 So.2d at 180-81.

In Cunningham, the patient’s diagnosis and treatment for a staphylococcus infection were delayed by several months while he was being treated for a back injury. The physician continued to treat the patient for his back injury after the infection was diagnosed and the patient ultimately died as a result of a pulmonary embolus. Id. at 177. At one point following the patient’s death, the physician told the patient’s wife that “there is some things that you ... that just can’t be explained,” implying that the death was unpreventable and not the result of negligence. Id. at 179. Later, the same physician argued that the statute began to run as soon as the infection was discovered. We held that summary judgment was improper. We quoted with approval the concurring opinion of Justice Kogan in Tanner:

Where plaintiffs have little or no special expertise and were told that the untoward event was “natural” or non-negligent, then I can envision only a few extraordinary situations in which the statute will begin to run on the date of the event itself.

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Cite This Page — Counsel Stack

Bluebook (online)
128 So. 3d 908, 2013 WL 6687846, 2013 Fla. App. LEXIS 20097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-northrup-fladistctapp-2013.