Court: District Court of Appeal of Florida; December 1, 1996; Florida; State Appellate Court
Rajaa Hanano and her husband, George Horak, appealed a trial court order dismissing their medical malpractice and negligence complaint against Steven P. Petrou, M.D., Mayo Clinic-Jacksonville, and St. Luke’s Hospital Association, based on the statute of limitations. The appellees argued the complaint should be dismissed as the statute of limitations under section 95.11(4)(b), Florida Statutes (1991), had expired. The trial court dismissed the complaint with prejudice. However, the appellate court reversed this decision, stating that the complaint did not clearly demonstrate that the cause of action was time-barred.
The appellate court emphasized that in evaluating a motion to dismiss, the trial court must rely solely on the allegations within the complaint. Generally, the statute of limitations is considered an affirmative defense, but may be raised in a motion to dismiss if the necessary facts appear within the complaint itself. While the complaint indicated that the surgery occurred on September 17, 1991, this information alone was insufficient for the court to determine when the plaintiffs discovered or should have discovered the alleged malpractice.
Citing precedent, the court noted that knowledge of an injury does not, by itself, trigger the statute of limitations; it must also include awareness of a reasonable possibility that the injury was due to medical malpractice. The court referenced prior cases establishing that an incident giving rise to a cause of action requires knowledge of all three elements: a medical procedure, negligent performance, and resultant injury. Thus, the dismissal was inappropriate since the complaint did not adequately demonstrate the plaintiffs' knowledge of negligence linked to their injury at the time the surgery was performed.
The statute of limitations may be delayed until after the event in question, but begins to run when the plaintiff has, or should have had, actual knowledge of the negligence involved. In the current case, similar to Elliot, the exact start date of the statute of limitations is unclear from the complaint. Hanano's surgical removal of her left kidney on September 17, 1991, does not alone indicate the potential for medical malpractice. The complaint claims that diagnostic procedures revealed her kidney was healthy and functioning, and that Dr. Petrou negligently removed it instead of addressing adhesions. It also alleges that Dr. Petrou ignored indications of other possible causes for her pain. However, the complaint does not specify when Hanano became aware, or should have become aware, that her kidney was possibly misdiagnosed and improperly removed. Thus, the defense based on the statute of limitations is not evident from the complaint's allegations. While the appellees argue that the appellants acknowledged their cause of action began on September 17, 1991, there is no record of such a concession. On remand, the burden will be on the appellees to demonstrate that the action was initiated more than two years after the cause of action was discovered or should have been discovered with due diligence. The resolution of this issue is critical to the appeal, and therefore other issues raised will not be addressed. The decision is reversed and remanded for further proceedings consistent with these findings.
