Lee v. Simon

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JULY TERM 2004

MERVIN LEE, as Personal Representative of
the Estate of VIRGINIA LEE, deceased,

Appella n t ,

v.

DAVID SIMON, D.O. , COLUMBIA PALMS
WEST HOSPITAL LIMITED
PARTNERSHIP d/b/a PALMS WEST
HOSPITAL; WILLIAM JEFFREY DAVIS,
D.O.; EMERGENCY PHYSICIANS
ENTERPRISES, INC.; EDDIE
VELAZQUEZ, M.D.; WESTERN
COMMUNITIES FAMILY PRACTICE OF
WEST PALM BEACH, a/k/a WESTERN
COMMUNITIES FAMILY PRACTICE
ASSOCIATES, INC.; STEVEN SACKS,
D.O.; SOUTH FLORIDA CENTER OF
GASTROENTEROLOGY, P.A. ; FRED L.
SIMON, M.D.; A MARIANO IBARROLA,
M.D.; PALM BEACH SURGICAL; STEVEN
G. GOFF, M.D.; DOUGLAS L. WATSON,
M.D.; JACK ZELTZER, M.D.; MITCHELL
N. DAVIS, D.O.; MATTHEW J. SMITH,
D.O.; J.M.D.; BARRY ABRAMS, M.D.;
BARRY ABRAMS, M.D., P.A.; LARRY
BUSH, M.D.; and SUZANNE Y. SUCCOP,
M.D.,

Appellees.

CASE NO. 4D 03-3292

Opinion filed October 27, 2004

Appeal from
the
the Circuit Court for
Fifteenth Judicial Circuit, Palm Beach County;
Karen Miller,
Judge; L.T. Case No.
502000CA008240XXMPAA, CL 00-8240AA.

Christian D. Searcy and Karen Terry of Searcy
Denney Scarola Barnhart & Shipley, P.A., and
Edna L. Caruso of Edna L. Caruso, P.A., West
Palm Beach, for appellant.

Douglas M. McIntosh, Louise H. McMurray
and Robert C. Weill of McIntosh, Sawran, Peltz,
Cartaya & Petruccelli, P.A., Miami, for appellee
David Simon, D.O.

WARNER, J.

Mervin Lee, as personal representative of the
Estate of Virginia Lee, appeals the trial court’s
summary final judgment dismissing his medical
malpractice claim against Dr. David Simon on
the grounds that the statute of limitations had
expired before Lee sued Simon. Lee contended
that he was unable to discover the identity of Dr.
Simon through the use of due diligence, and that
the issue of due diligence is a question of fact
for the jury. We hold that the statute of
limitations commenced when Lee was aware of
the injury (death) and the reasonable pos sibility
that it was caused by negligence. Because there
is no tolling provision that would apply to
prevent the running of the statute, nor is the
defendant equitably estopped from asserting the
bar, the statute of limitations has run and we
affirm the ruling of the trial court.

On May 31, 1998, Virginia Lee went to the
emergency room of a local hospital complaining
of abdominal pain and shortness of breath. She
had a history of diverticulitis. She was initially
seen by an emergency room physician. After an
initial examination, Dr. Davis made a diagnosis
of acute diverticulitis and possible sepsis. He
contacted her primary care physician, Dr.
Campitelli. Dr. David Simon was on call for Dr.
Campitelli that day. Dr. Davis and Dr. Simon
agreed that Virginia should be admitted to the
hospital, and Dr. Simon gave the order to admit,
also recommending a gastrointestinal consult. A
nurse entered these orders on Virginia’s hospital
chart on a form entitled “Physician Orders and
Signature.” On the bottom, she handwrote “T.O.
Simon.” Apparently this is the hospital’s
abbreviation for telephone order by Dr. Simon.
However, the emergency room records listed Dr.
Campitelli as
the admitting physician for
Virginia.

 Virginia was not seen by Dr. Ibarrola, a
surgeon, until the next day. Exploratory surgery
revealed a resected large bowel, perforated
diverticula with abscess inflammation, as well as
other complications. Following surgery, several
other doctors saw Virginia, including Dr. Fred
Simon,
an
associate
of Dr.
Ibarrola.
Unfortunately, during a subsequent surgery
while still hospitalized, Virginia suffered cardiac
arrest and died on July 2, 1998. The Expiration
Summary listed Dr. Campitelli as her physician.
Nowhere does it list Dr. David Simon.

Believing medical malpractice occurred
during Virginia’s care and
treatment, Lee
commenced pre-suit proceedings under section
766.106, Florida Statutes (1998), by filing a
notice of intent to initiate suit against various
physicians associated with Virginia’s care,
including Dr. Campitelli and Dr. Fred Simon as
well as
twenty other healthcare providers
involved in her treatment. Dr. David Simon was
not identified as a potential defendant nor served
with a notice of intent.

Lee claims that he first discovered Dr. David
Simon’s involvement with Virginia’s care when
Dr. Campitelli filed an affidavit during the pre-
suit process on July 17, 2000, explaining that
Dr. David Simon had telephoned the admitting
orders for Virginia. A month later, Lee filed suit
agains t twenty-five defendants but did not name
Dr. David Simon because he had not been
subject to pre-suit procedures. On February 28,
2001, Lee served notice of intent to sue on Dr.
David Simon, who responded by denying the
claim.

Lee filed an amended complaint in June 2001
joining Dr. David Simon. Dr. Simon filed an
answer and
then a motion for summary
judgment based solely on
the statute of
limitations. Simon argued that the statute of
limitations expired on September 1, 2000, which
was two years plus the ninety- day extension
period allowed by statute from the date of
Virginia’s admission to the hospital. Simon
argued that his involvement in Virginia’s care
was readily available through a review of her
records because of the nurse’s notation of “T.O.

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Simon” on the admitting form. Had Lee’s
attorneys exercised due diligence, they could
have discovered Simon’s identity by simply
calling the hospital. Because more than two
years had passed from the date of Virginia’s
death and the initiation of pre-suit investigation,
the statute of limitations had run, entitling
Simon
to summary
judgment.
Countering
Simon’s argument, Lee maintained there was
nothing in the medical records to indicate that
Dr. David Simon was involved in Virginia’s
treatment, and that he had not learned of Simon
until Campitelli submitted his affidavit.

The trial court granted the summary judgment,
finding that the statute of limitations had
expired. It relied on Frankowitz v. Propst, 489
So. 2d 51 (Fla. 4th DCA 1986), in which we
held that where the means of discovering a
physician’s involvement were readily available
to plaintiff
through
the medical
records,
plaintiff’s delay in examining those records did
not toll the statute, and the physician was
entitled to rely on the bar of the statute of
limitations when suit was
filed after
its
expiration. Lee appeals this final judgment.

The statute of
limitations
malpractice actions
is
found
95.11(4)(b), Florida Statutes (1998):

for medical
in
section

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 . . . . In
those actions covered by th is paragraph in
which
it can be
shown
that
fraud,
concealment, or intentional misrepresentation
of fact prevented the discovery of the injury
the period of limitations is extended forward
2 years from the time that the injury is
discovered or should have been discovered
with the exercise of due diligence . . . .

In Barron v. Shapiro, 565 So. 2d 1319, 1322
(Fla. 1990), the court construed an earlier but
substantially similar version of this statute as
triggering the running of the statute “when the

plaintif f should have known either of the injury
or the negligent act.” The court modified this
holding in Tanner v. Hartog , 618 So. 2d 177,
181-82 (Fla. 1993), and stated:

We hold that the knowledge of the injury as
referred to in the rule as triggering the sta tute
of limitations means not only knowledge of
the injury but also knowledge that there is a
reasonable possibility that the injury was
caused by medical malpractice. 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.

(Footnote omitted). Thus, knowledge of an
injury that may be caused by medical negligence
is sufficient to commence the running of the
statute of limitations. In this case, the statute
started running with the death of Virginia. Lee
cannot contest the fact that he knew both of the
injury (death) and that negligence may have
occurred. He filed a notice of intent to pursue
litigation, and he served a notice on Dr.
Campitelli, as the admitting physician, because
he believed that negligence had occurred at the
time Virginia was admitted to the hospital due to
a failure to properly examine and diagnose her.
Thus, he intended to bring a claim agains t the
admitting physician.
Contrary
to Lee’s
argument, the statute of limitations does not
commence when he discovers a person to be
sued but instead commences when he has notice
of the injury and its possible cause by medical
negligence.

The question in this case is not when the
statute began to run but whether Lee’s failure to
discover the identity of the doctor somehow tolls
the statute of limitations. Section 95.11(4)(b)
provides an extension where fraud or intentional
concealment prevents the discovery of the
injury, but it does not include a similar provision

for the failure to discover the negligent actor.
Section 95.051(1), Florida Statutes (1998) ,
provides when the running of the statute of
limitations may be tolled. None of the grounds
contained in that statute apply to this case.

In several cases we have considered whether
the fraudulent concealment of the identity of the
negligent actor tolls the statute. In International
Brotherhood of Carpenters & Joiners of
America, Local 1765 v. United Ass’n of
Journeyman Apprentices, 341 So. 2d 1005 (Fla.
4th DCA 1976), the plaintiff’s building was
damaged by an explosion. Suit was not brought
until after the expiration of the applicable statute
of limitations because the plaintiff did not
discover the identity of the tortfeasor. We held
that fraudulent concealment did not toll the
statute of limitations, reasoning:

It
is clear
that
the doctrine, recently
reasserted by our Supreme Court in Nardone
v. Reynolds , 333 So.2d 25 (Fla.1976), and
cases cited, under which the statutory period
is tolled because of a fraudulent concealment
of the existence of a Cause of action which
would give rise to a right to sue does not
apply here. In this case, the plaintiff plainly
knew that it had a cause of action in tort as
soon as its building blew up. Its ignorance as
to the identity of the potential defendant does
not affect this fact, see 1 Fla.Jur., Actions, s
22, p. 148, nor, as all the authorities say,
bring it within this limited exception to the
statutory rule.

It can hardly be denied that the result we
reach, which in effect rewards those who by
criminal skill not only stealthily destroy
another’s property but avoid detection during
the statutory period as well, is a harsh one.
But all statutes of limitations, which by their
very nature destroy otherwise just causes
merely because of the passage of time, are
inherently harsh. Harsh results represent a
trade -off which the Legislature has decided it
is willing to make in exchange for the
burying of stale claims.
Even in the
provisions of F.S. s 95.051, enacted after the
events involved in this case, the Legislature

3

has declined to exclude the situation before
us from the effect of this decision; it certainly
had not done so before. In the end, Its
determination should, and therefore does,
prevail.

341 So. 2d at 1006- 07 (citations omitted).

We relied on International Brotherhood in
Sullivan v. Fulton County Administrator , 662
So. 2d 706, 707- 08 (Fla. 4th DCA 1995), rev. in
part on other grounds, 753 So. 2d 549 (Fla.
1999),1 and held, with some expression of
distaste, that the fraudulent concealment of the
identity of a murderer so that a wrongful death
action could not be brought within the two-year
statute of limitations did not toll the statute.
Again, in Putnam Berkley Group, Inc. v. Dinin ,
734 So. 2d 532, 534 (Fla. 4th DCA 1999), we
held that fraudulent concealment of the identity
of a wrongdoer did not toll the statute because
section 95.051 did not contain such a provision,
and section 95.051(2) specifically provides that
“‘No disability or other reason shall toll the
running of any statute of limitations except those
specified in this section….’”

The supreme court ameliorated the effect of
this construction of the statute in Major League
Baseball v. Morsani, 790 So. 2d 1071 (Fla.
2001). While acknowledging that the reasons
for tolling the statute set forth in section 95.051
were a legislatively mandated exclusive set of
circumstances that would suspend the relevant
statute of limitations, it found the principle of
equitable estoppel could be used to prevent a
defendant from raising the statute of limitations
as a bar to suit. 790 So. 2d at 1075-77. The
court stated:

1 The supreme court issued two opinions in this case.
The first agreed with this court’s analysis of the
tolling issue. Fulton County Adm’r v. Sullivan, 22
Fla. L. Weekly S578 (Fla. Sept. 25, 1997). We
quoted extensively from this opinion in Putnam
Berkley Group, Inc. v. Dinin, 734 So. 2d 532, 533-
34 (Fla. 4th DCA 1999) . However, the opinion was
subsequently withdrawn, and the case was decided on
another issue. See Fulton County Adm’r v. Sullivan,
753 So. 2d 549 (Fla. 1999). The second opinion did
not address the tolling statute.

4

The doctrine of estoppel is applicable in all
cases where one, by word, act or conduct,
willfully caused another to believe in the
existence of a certain state of things, and
thereby induces him to act on this belief
injuriously to himself, or to alter his own
previous condition to his injury. State ex rel.
Watson v. Gray, 48 So.2d 84, 87- 88
(Fla.1950).

Id. at 1076. Thus, while tolling operates on the
statute, equitable estoppel operates on the party.

We elaborate on the construction of tolling
provisions and equitable estoppel to contrast
with the facts of this case. Here, there is no
suggestion of fraudulent concealment of the
identity of the doctor, and even if there were, it
would not
toll
the statute of
limitations.
Equitable estoppel would not apply because
there is nothing in the record to suggest that the
doctor in any way misled or prevented Lee from
discovering his identity. The hospital medical
records may have been inaccurate by referring to
Dr. Campitelli as the admitting physician in
some places, but this was not due to any fault of
Dr. David Simon. The recor ds did contain the
name Simon on the physician’s notes regarding
admission. Nothing suggests any reason why
Dr. David Simon should be equitably estopped
from asserting
the bar of
the statute of
limitations.

Lee in essence argues that he should be
relieved from the effect of the statute of
limitations because of excusable neglect. We do
not doubt that he used care in reviewing the
medical records and simply missed Dr. Simon’s
name. But excusable neglect is not a ground for
tolling the statute. And it is not attributable in
any way to Dr. David Simon’s conduct.

In Louis v. South Broward Hospital District,
353 So. 2d 562 , 563 (Fla. 4th DCA 1977), we
held that the statute of limitations barred suit
where the plaintiff filed suit against the wrong
defendant and later tried to amend to add a
different defendant after the running of the
statute of limitations. The plaintiff filed suit

David Simon, we cannot conclude that it was
impossible. Moreover, it does not appear that
the Legislature has provided for an exception to
the running of the statute of limitations for such
cases.

For
the final
these reasons, we affirm
judgment in favor of Dr. David Simon based
upon the bar of the statute of limitations.

SHAHOOD, J., and GATES, MICHAEL L.,
Associate Judge, concur.

NOT FINAL UNTIL DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.

against Hollywood Memorial Hospital of West
Hollywood.
The summons was issued to
Hollywood Memorial Hospital—North Broward
Hospital District. An amended summons and
complaint was issued after the running of the
applicable
limitations naming
statute of
Hollywood Memorial Hospital-South Broward
Hospital District at a different address than the
first summons. The trial court granted summary
judgment, finding that the action was instituted
against South Broward Hospital District, a
different entity than North Broward Hospital
District, after the running of the statute of
limitations. We said, “An amendment which
merely corrects a misnomer might well relate
back to the date the complaint was originally
filed but this relation back rule is inapplicable
where the effect is to bring new parties into the
suit.” 353 So. 2d at 563.

Here, Lee filed a notice of intent to litigate
against Dr. Campitelli for his negligence in
Virginia’s admission to the hospital. After
finding that Dr. David Simon was the admitting
physician, Lee filed suit against him. Just as in
Louis, a new party was added, and
the
amendment cannot relate back to the filing of
the suit.

Finally, Frankowitz expresses the principle
that knowledge of the contents of the medical
records are imputed to a party even when the
contents are not known. 489 So. 2d at 52 (citing
Nardone , 333 So. 2d at 34). In Frankowitz, the
injured patient knew that Dr. Frankowitz had
treated her for a heart condition but did not
realize that he was also involved in her treatment
for gastrointestinal disorders, which formed the
bases of her medical malpractice claim. The
details of his treatment were in the records but
the plaintiff did not read them because she
thought they were not germane to her claim.
Nevertheless, knowledge of whatever was
contained in the medical records was attributable
to the plaintiff. Id. Likewise, knowledge of
what was in Virginia’s medical records was
attributable to Lee. This included the reference
to “Simon” on the orders admitting Virginia to
the hospital. Although it may have required
some investigation to discover the identity of Dr.

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