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Hazen v. Kaplan4/30/1999
thereby triggering the statute of limitations. He argues further there was a genuine factual issue regarding whether he told Dr. Brill that he had been paralyzed from the myelogram or since the myelogram.
Section 95.11(4)(b), Florida Statutes (1993) states, in pertinent part:
"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..."
Section 766.106(4) requires the notice of intent to initiate medical malpractice litigation to be served within the limitations period set by section 95.11. In Tanner, the supreme court held the statute of limitations is triggered by knowledge of the injury and "knowledge that there is a reasonable possibility that the injury was caused by medical malpractice." Tanner, 618 So. 2d at 181. However, as the court explained, the type of injury may be enough to satisfy both requirements. The court stated:
"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. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred." Id., at 181-2.
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 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. We hold, under the facts of this case, Hazen's paralysis following the myelogram was sufficient to "communicate the possibility of medical negligence." Tanner. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and Hazen's medical malpractice action against the appellees herein is barred.
AFFIRMED.
DAUKSCH and HARRIS, JJ., concur.
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