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Hernandez v. Amisub Inc.6/24/1998
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
LOWER TRIBUNAL NO. 93-24446
An appeal from the Circuit Court for Dade County, Robert M. Deehl, Judge.
The plaintiffs below, Samuel Hernandez and Elizette Hernandez (collectively referred to as "Hernandez" hereafter), appeal from the trial court's order granting a directed verdict in favor of the defendant below, Amisub, Inc., d/b/a Kendall Regional Medical Center (Hospital). We reverse.
On April 11, 1988, a laparotomy pad was left inside Mr. Hernandez' abdomen following surgery at the Hospital. Years later, Hernandez began to experience abdominal pain. After another doctor discovered that Hernandez' pain was the result of the pad, it was surgically removed on May 27, 1993.
On December 30, 1993, Hernandez filed a complaint, alleging that the Hospital's employees and the surgeon were negligent in leaving the pad inside his body. The complaint also alleged that the Hospital and its employees "misrepresented material facts" concerning the pad count. Thereafter, the trial court granted the Hospital's motion to dismiss, finding that the action was barred by the four-year medical malpractice statute of repose. See ยง 95.11(4)(b), Fla. Stat. (1989). This Court reversed, finding that the allegations of the amended complaint were sufficient to create a fact issue as to whether the seven-year repose rather than the four-year repose period was applicable. See Hernandez v. Amisub (Am. Hosp.), Inc., 659 So. 2d 1316 (Fla. 3d DCA 1995).
Section 95.11(4)(b), Florida Statutes (1989), states in relevant 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; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued . . . . In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitation is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.
Thus, section 95.11(4)(b) extends the normal four-year statute of repose in a medical malpractice action to seven years in cases of fraud, concealment, or intentional misrepresentation of fact.
Upon remand and after presenting testimony, both parties moved for summary judgment on the issue of the statute of repose. Specifically, Hernandez argued that the seven-year repose period was applicable because there had been an "intentional misrepresentation of fact" that prevented Hernandez from discovering his injury within the initial four-year repose period. Hernandez also argued that the "concealment" exception to the four-year statute of repose applied. The Hospital argued that the four-year repose period applied, thus barring Hernandez' recovery. The trial court denied both motions.
Prior to trial, the Hospital admitted negligence, stipulating that its employees' actions fell below the standard of care and that this caused Hernandez' injuries. At the close of Hernandez' case, the Hospital moved for a directed verdict, asserting that Hernandez had proved neither intentional misrepresentation nor concealment, which precluded the application of the seven-year statute of r
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