Daisha Ervin v. Sergio A. Alvarez, M.D.

• Court: District Court of Appeal of Florida
• Decided: July 23, 2025
• Docket: 3D2024-1410
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 23, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1410 Lower Tribunal No. 19-12311-CA-01 ________________

Daisha Ervin, Appellant,

vs.

Sergio A. Alvarez, M.D., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.

The Beregovich Law Firm, P.A., and Andres I. Beregovich (Orlando), for appellant.

Falk, Waas, Solomon, Mendlestein & Davis, P.A., Jessica Hernandez and, Scott L. Mendlestein; Lalchandani Simon PL, Kubs Lalchandani, and Daniel E. Davis, for appellees.

Before EMAS, LOGUE, and MILLER, JJ.

PER CURIAM. Affirmed. See § 95.11(4)(b), Fla. Stat. (2016) (“An action for medical

malpractice shall 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 . . . .”); § 766.104(2), Fla. Stat. (2016) (“Upon petition to the clerk

of the court where the suit will be filed and payment to the clerk of a filing

fee, . . . an automatic 90-day extension of the statute of limitations shall be

granted to allow the reasonable investigation required by subsection (1).”);

Porumbescu v. Thompson, 987 So. 2d 1275, 1276–77 (Fla. 1st DCA 2008)

(“Once the extension is ‘purchased’ by filing the petition and paying the fee,

the statute of limitations becomes two years plus ninety days.”); Tanner v.

Hartog, 618 So. 2d 177, 181–82 (Fla. 1993) (“The nature of the injury,

standing alone, may be such that it communicates the possibility of medical

negligence, in which event the statute of limitations will immediately begin to

run upon discovery of the injury itself.”); Hazen v. Kaplan, 734 So. 2d 441,

443 (Fla. 5th DCA 1999) (“The evidence before the trial court showed Hazen

was ambulatory before entering the hospital, though he was experiencing

weakness in his legs and severe lumbar back pain. More than twelve hours

after undergoing the myelogram, Hazen discovered he was still numb from

his hips down and his legs were paralyzed. Although medical staff told him

2 the numbness and paralysis were caused by the anesthetic which had not

worn off, Hazen reasonably suspected something was amiss because, in his

experience, anesthetic effects dissipate in four to five hours.”).