(The information on this site applies to Florida only)

This article was written by Scott R. McMillen and first published in the Florida Bar Journal in November, 1996.

THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS:
SOME ANSWERS AND SOME QUESTIONS

  Part 1    Part 2    Footnotes

Part 2

Whose Knowledge Suffices?

While Tanner returns to what some would call the more just rule as to the type of knowledge needed in order to trigger the start of the two year medical negligence statute of limitations, it provides little guidance concerning whose knowledge starts the statute running.

One little-noticed Florida case that considered this issue was Arthur v. Unicare Health Facilities, Inc., 602 So.2d 596 (Fla.2d DCA 1992). This medical negligence case involved claims for both personal injury and wrongful death. The patient was an elderly gentleman who allegedly sustained decubitus ulcers, resulting in infection, amputation of his leg, and ultimately death, as a result of the defendant's negligence.⁽¹⁸⁾ There was considerable doubt whether the plaintiff himself "knew" of the negligence, or even the injury, because he was deaf, blind, senile, and out of touch with his surroundings and reality.⁽¹⁹⁾ The first question addressed by the Court was, under those facts, whether the patient himself could have sufficient notice of the injury or negligence to trigger the two year statute of limitations running. The Court recognized this presented a factual setting yet to be addressed by a Florida Court.⁽²⁰⁾ Because the patient had little or no awareness of his condition or the acts or omissions of those around him, the Second District held this created a jury question as to his capacity to perceive the incident or injury, thus precluding a summary defense judgment on that issue.

A second significant issue addressed by Arthur also was novel. The issue was whether the knowledge of the patient's adult son, who had actual knowledge of his father's decubitus ulcers at the time, was sufficient to trigger the start of the two year statute of limitations. The case was decided under the Nardone rule, so knowledge of the injury would have been sufficient to trigger the statute so long as the son's knowledge could be imputed to the patient. Indeed, not only did the adult son know of the injuries, he had a power of attorney which arguably would have allowed him to bring suit for his father. The Second District held that the son's knowledge could not be imputed to his father under these circumstances, and that this also constituted grounds upon which to reverse the summary judgment for the defendants.⁽²¹⁾ The Court reasoned that the senile patient had not been declared legally incompetent and his son had not been appointed his legal guardian. Since the son was not the legal guardian he had no duty to bring a claim on behalf of his father. The Court distinguished the circumstance when a parent, as legal guardian, has a legal right and a duty to bring an action on behalf of an injured child. With an emancipated adult the Court found that neither family nor friends have such a duty, and consequently notice to them of injury or possible malpractice cannot be imputed to the adult patient.⁽²²⁾ The Court was also unconvinced the power of attorney conferred a right on behalf of the adult son to bring a suit, but nevertheless concluded it conferred no duty to bring a suit, and so would not result in imputed notice to the patient in any event.⁽²³⁾

This case creates intriguing questions that will arise in some of the most sizeable medical negligence cases: those involving significant brain damage or death. In any case where brain damage occurs to an emancipated adult, rendering him incompetent, the issue of whose knowledge starts the two year clock ticking may become paramount. Under the Arthur rationale, the patient would have no notice of what happened because he lacks sufficient awareness due to his brain damage. Until a legal guardianship is established, who has a duty to bring a cause of action on behalf of that person? It is possible that if there is a spouse, a court will conclude the spouse has an obligation to pursue both the guardianship and the cause of action. No Florida case has held this so far and it is unclear from the Arthur opinion whether the elderly patient had a surviving spouse, whether the spouse had relevant knowledge, and whether the court included the spouse when it stated that "family members" had no duty to bring an action for the patient. Considering that not all marriages are blissful, arguably it would be inappropriate to find the non-injured spouse's notice sufficient to cut off a cause of action for the injured spouse. Perhaps the consortium claim should be lost, but it could be argued that there is no justification for a rule resulting in the forfeiture of the injured spouse's own cause of action.

Another reason it might be said that a spouse of an injured adult has no duty, but the parent of an injured minor does, is because of the differences in the legal disability. The law automatically creates a legal disability for a minor,⁽²⁴⁾ due solely to his age, and then automatically recognizes the natural parents as natural guardians, before the injury ever occurs. But for an unemancipated adult, the law generally assumes legal competence, not incompetence, until proven otherwise in court. Until legal incompetence is proven, one spouse normally has no legal right to file suit for another. Presumably if there is no right to act for another there can be no duty to act either.

If there is no spouse the result seems clear under Arthur: no other family member has a duty either to become the guardian or to pursue a case. Therefore, the family's knowledge of the incident causing the brain damage is irrelevant for statute of limitations purposes, at least until one of them becomes appointed legal guardian.⁽²⁵⁾

Similar questions arise when one considers the two year statute of limitations in a wrongful death case. These cases may only be brought by a court appointed personal representative of the estate, who files suit on behalf of the estate and each family member considered a "survivor".⁽²⁶⁾ While probate statutes provide for family preferences in appointment as personal representative,⁽²⁷⁾ there is no obligation to accept an appointment. Consequently, the knowledge of any particular family member about the medical incident would also be irrelevant under Arthur.

Perhaps in adult brain damage cases and wrongful death cases there simply can be no commencement of the two year statute of limitations until the actual appointment of a legal or personal representative. While this may seem unfair to the defendant health care provider, any other rule arguably would be even more unfair to certain plaintiffs. The four year statute of repose nonetheless prevents inordinate delay.


Conclusion

The application of the medical negligence statute of limitations is still evolving in Florida. While Tanner, through the easing of the Nardone rule, provides some relief to plaintiffs, Kush and the absolute four year statute of repose protect health care providers in a way no other class of defendants is protected. Future cases will explore the ramifications of Arthur, including the question of who must have notice to trigger the two year limitations period.

  Part 1    Part 2    Footnotes