Bove v. Naples HMA, LLC

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GINA MARIE BOVE, as Personal )
Representative of the Estate of Anthony )
Bove, deceased, )
)
Appellant, )
)
v. ) Case No. 2D15-1680
)
NAPLES HMA, LLC, d/b/a PHYSICIANS )
REGIONAL MEDICAL CENTER-PINE )
RIDGE; E. WILLIAM AKIN, M.D.; and )
JAY WANG, M.D., )
)
Appellees. )
)
Opinion filed April 1, 2016.
Appeal from the Circuit Court for Collier
County; Hugh D. Hayes, Judge.
Joseph A. Davidow and Michael A. Price
of Willis & Davidow, L.L.C., Naples, for
Appellant.
Shelley H. Leinicke of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Ft.
Lauderdale, for Appellee Naples HMA,
LLC, d/b/a Physicians Regional Medical
Center-Pine Ridge.
Jason M. Azzarone and Louis J. LaCava
of LaCava & Jacobson, P.A., Tampa, for
Appellee E. William Akins, M.D.
Eric F. Ochotorena and Meghan
Whisenhunt of Rissman, Barrett,
Hurt, Donahue & McLain, P.A.,
Tampa, for Appellee Jay Wang, M.D.
MORRIS, Judge.
Gina Marie Bove, as personal representative of the estate of Anthony
Bove, appeals a final judgment entered in favor of Naples HMA, LLC, d/b/a Physicians
Regional Medical Center-Pine Ridge, Dr. E. William Akins, and Dr. Jay Wang in Mrs.
Bove's medical negligence action. For the reasons we explain, we conclude that Mrs.
Bove's complaint was untimely because she did not file it within two years of when she
became aware of the possibility that medical negligence occurred. We therefore affirm.
I. BACKGROUND
The underlying medical negligence action arose after Mr. Bove died on
February 26, 2012, after suffering a retroperitoneal bleed following a bone marrow
biopsy performed by Dr. Akins at the direction of Dr. Wang. Both Dr. Akins and Dr.
Wang are physicians at Physicians Regional Medical Center-Pine Ridge (Physicians).
After the bleed was discovered, Mr. Bove was evaluated by another physician who
concluded that the bleed was a co-morbid condition acting in conjunction with other
underlying medical issues.
On April 19, 2012, Mrs. Bove met with Dr. Akins to review what had
occurred during the bone marrow biopsy.1 On July 10, 2012, Mrs. Bove met with her
attorney. On February 2, 2014, and again on February 23, 2014, Mrs. Bove received
1
Mrs. Bove made this factual assertion in her initial brief though she
provided no record citation. This fact was not challenged by the appellees.
-2-
copies of letters from two medical experts who concluded that Mr. Bove's death was
caused by the retroperitoneal bleed and that the bone marrow biopsy caused the bleed.
On February 25, 2014, Mrs. Bove, via certified mail, served Physicians
with a copy of the notice of intent to pursue litigation, along with Mr. Bove's medical
records and the two letters from Mrs. Bove's medical experts. Notably, however,
Physicians did not receive the notice of intent until March 4, 2014. Mrs. Bove provided
affidavits executed by the two experts to Physicians on March 17, 2014. The notice
stated that "the two (2) year timeframe [in which to file the complaint] would begin to run
from the date of Mr. Bove's death, as this was the date the family and estate of Mr.
Bove discovered the negligence of the professionals of Physicians Regional in
performing the bone marrow biopsy."
Mrs. Bove served a notice of intent on Dr. Wang on May 12, 2014, and he
received it on May 19, 2014. She served a notice of intent on Dr. Akins on June 11,
2014, but he did not receive it until June 16, 2014.2 The notices sent to Drs. Wang and
Akins did not contain any specific details as to when Mrs. Bove learned of any purported
negligence attributed to Drs. Wang or Akins. Rather, the notices requested that Drs.
Wang and Akins refer to the averments made in the notice of intent that was served on
Physicians (copies of which were attached).
In the interim, Mrs. Bove filed petitions for extensions of the statute of
limitations, with the first petition being filed April 30, 2014. After receiving denials of the
notices of intent from all of the appellees, Mrs. Bove filed her complaint on September
8, 2014. Physicians, Dr. Wang, and Dr. Akins all filed motions to dismiss. Mrs. Bove
2
Mrs. Bove emailed the expert affidavits to Dr. Wang on June 12, 2014,
but she served the affidavits with the notice of intent on Dr. Akins on June 11, 2014.
-3-
filed responses to all of the motions to dismiss, and a hearing was conducted.
Ultimately, the trial court granted the motions to dismiss with prejudice solely on the
basis that Mrs. Bove failed to file her complaint within the two-year statute of limitations
set forth in section 95.11(4)(b), Florida Statutes (2011).3
II. ANALYSIS
This court reviews a dismissal of a complaint de novo. See Brooke v.
Shumaker, Loop & Kendrick, LLP, 828 So. 2d 1078, 1080 (Fla. 2d DCA 2002).
Mrs. Bove contends that she did not learn of the appellees' possible
negligence until July 10, 2012, when she met with her attorney for the first time and,4
therefore, that the statute of limitations did not begin to run until that date. However,
she also asserts that because she filed motions for extensions of the two-year statute of
limitations set forth in section 95.11(4)(b), her September 8, 2014, complaint was timely.
Section 95.11(4)(b) provides 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, except that this 4-year period shall not bar an
action brought on behalf of a minor on or before the child's
eighth birthday.
3
Because the trial court determined the complaint was untimely, it declined
to address the other issues raised by the appellees in their motions to dismiss.
4
The fact that Mrs. Bove met with Dr. Akins on April 19, 2012, to discuss
what had occurred during the bone marrow biopsy suggests to us that Mrs. Bove might
have been concerned about the possibility of medical negligence as a contributing
factor in her husband's death as of that date, rather than on the date that she first met
with her attorney. However, because we conclude, as explained herein, that she is
bound by the assertion made in her notice of intent, the issue of what knowledge she
had in April 2012 is not dispositive.
-4-
Mere knowledge of an injury is not enough to trigger the running of the statute of
limitations; rather, a plaintiff must also have "knowledge that there is a reasonable
possibility that the injury was caused by medical malpractice." Tanner v. Hartog, 618
So. 2d 177, 181 (Fla. 1993) (footnote omitted).
While we can foresee circumstances in which the type of incident that Mr.
Bove experienced—a retroperitoneal bleed—might not be the obvious result of medical
negligence, Mrs. Bove is not entitled to relief under the facts of this case. This is
because, in her notice of intent served on Physicians, her attorney acknowledged that
on the date of Mr. Bove's death (February 26, 2012), "the family and estate of Mr. Bove
discovered the negligence of the professionals of Physicians Regional in performing the
bone marrow biopsy." Mrs. Bove argues that she should not be bound by her attorney's
statement in the notice of intent because it was not evidence. Indeed, she points to her
own affidavit, which she filed in response to the appellees' motions to dismiss, wherein
she stated that she did not become aware of any possible medical malpractice until she
met with her attorney in July 2012. But generally, parties are bound by the allegations
in their pleadings, see Hart Props., Inc. v. Slack, 159 So. 2d 236, 238 (Fla. 1963), and
within the context of judicial proceedings, "litigants are not permitted to take inconsistent
positions," Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41
(Fla. 1st DCA 1970). The fact that the notice of intent was not a pleading or that the
judicial proceedings had not yet begun in this case is not dispositive. The service of the
notice of intent was a statutory prerequisite to filing suit,5 and it contained factual
allegations relied on by the parties. Consequently, Mrs. Bove was bound by the
5
See § 766.106(2)(a), Fla. Stat. (2013).
-5-
assertion contained within her notice of intent that she first became aware of the
appellees' possible negligence on February 26, 2012. As a result, Mrs. Bove was
required to serve her notices of intent no later than February 26, 2014.
Mrs. Bove argues that even if the statute of limitations expired on
February 26, 2014, her complaint was timely filed because she not only served her first
notice of intent on February 25, 2014, but also because she petitioned for extensions of
the statute of limitations period. She relies on section 766.106(4), Florida Statutes
(2013), to argue that because she served her notice of intent on Physicians prior to the
expiration of the statute of limitations, the limitations period was tolled.
Section 766.106(4) provides that during the ninety days following service
of a notice of intent, the statute of limitations is tolled as to all potential defendants.
However, Florida Rule of Civil Procedure 1.650(b)(1), which deals with medical
malpractice presuit screening requirements, provides in relevant part that "[n]otice of
intent to initiate litigation sent by certified mail to and received by any prospective
defendant shall operate as notice to the person and any other prospective defendant
who bears a legal relationship to the prospective defendant receiving the notice."
(Emphasis added.) And rule 1.650(d)(1) provides in relevant part that "[t]he notice of
intent to initiate litigation shall be served by certified mail, return receipt requested, prior
to the expiration of any applicable statute of limitations." (Emphasis added.) Thus we
conclude that because the rule refers to the receipt of notice and requires that the notice
be sent by certified mail, it is the date that the notice is received—rather than the date
that the notice is mailed—that is relevant for purposes of determining whether the
statute of limitations has been tolled. Our interpretation of the rule is strengthened by
-6-
case law interpreting section 766.106 which has likewise focused on the receipt of
notice. Cf. Hillsborough Cty. Hosp. Auth. v. Coffaro, 829 So. 2d 862, 866 (Fla. 2002)
(discussing various tolling and extension periods for statute of limitations purposes in
medical malpractice cases and explaining that "[f]or purposes of the statutory scheme,
the date [that the defendants] received the notice of intent is the date used in computing
statutory time requirements"); Boyd v. Becker, 627 So. 2d 481, 483 (Fla. 1993)
(analyzing both sections 766.106(3) and 766.106(4), Florida Statutes (1989), to
conclude that although subsection (3) referred to a notice being mailed, the reference in
subsection (4) to a notice being received meant that the ninety-day investigation period
addressed in subsection (3) "should be computed from the date the putative defendant
receives the notice of intent").6
Here, although Mrs. Bove sent the notice of intent to Physicians on
February 25, 2014, one day before the statute of limitations expired, Physicians did not
receive the notice of intent until March 4, 2014. And Drs. Wang and Akins received the
notice of intent even later. Because none of the appellees received the notice of intent
until after the statute of limitations expired on February 26, 2014, the statute of
6
We acknowledge that the 2013 version of section 766.106(4) applicable
in this case does not refer to notice of intent being received. Rather, it refers to notice
of intent being served within the time limits of section 95.11. However, the change in
the language used in section 766.106(4) does not persuade us that the legislature, in
amending section 766.106, or the Florida Supreme Court, in drafting rule 1.650,
intended for service of notice of intent to be perfected upon mailing, rather than upon
receipt. Using the date of mailing would result in a shortening of the ninety-day
investigation period afforded to defendants in medical malpractice actions. See §
766.106(3)(a). And there is no indication that such a result was intended. Rather, the
continued requirement of service of the notice of intent through certified mail, return
receipt requested, in section 766.106 in addition to the rule's reference to notice being
received by a defendant convinces us that it is the date of receipt that begins the tolling
period.
-7-
limitations expired, and Mrs. Bove could not revive it by filing a petition for extension of
the limitations period. See § 766.104(2) (permitting the extension of statute of
limitations period upon petition, but providing that "[t]he provisions of this subsection
shall not be deemed to revive a cause of action on which the statute of limitations has
run").
Mrs. Bove makes the alternative argument that the issue of when she
discovered the appellees' possible medical malpractice was an issue of fact that should
have been decided by a jury rather than by the trial court and, therefore, that the trial
court erred by ruling on the issue of the timeliness of her complaint.
In a typical medical malpractice action, this argument might have merit
due to the inherent difficulties in determining when a plaintiff was not only aware of the
injury but also aware that there was a reasonable possibility that the defendant's
medical malpractice caused the injury. The Florida Supreme Court has recognized that
in such cases, it may be difficult to decide as a matter of law when the statute of
limitations begins to run and the issue may be better left for the fact-finder. See Tanner,
618 So. 2d at 182. Thus in a case where there is no admission by a plaintiff as to when
they became aware of possible negligence, the question of when the limitations period
begins to run is inherently less susceptible of a pretrial disposition. See Cohen v.
Cooper, 20 So. 3d 453, 456 (Fla. 4th DCA 2009) ("[T]he determination of timeliness
under the statute of limitations is fact-specific and within the province of the jury, not the
trial judge."); Cunningham v. Lowery, 724 So. 2d 176, 180-81 (Fla. 5th DCA 1999)
(holding that jury should decide whether what plaintiff knew when her husband's
infection was diagnosed was enough to conclude that the statute of limitations had
-8-
expired when the suit was filed); Davis v. Green, 625 So. 3d 130, 132 (Fla. 4th DCA
1993) (holding that there was a genuine issue of material fact concerning when the
medical malpractice statute of limitations began to run).
But here, we have an admission by the plaintiff, Mrs. Bove, that she
became aware of the appellees' possible medical malpractice on the date of her
husband's death. The issue of whether Mrs. Bove should be bound by her admission
was one of law, and as we have already explained, the trial court properly determined
that she was bound by that admission. As a result of that determination, the date of her
knowledge of the appellees' possible negligence had been established, and there were
no other factual disputes to be resolved. Rather, the only remaining issues were
whether service of the notice of intent was accomplished when the notice was mailed or
received and whether Mrs. Bove's petitions for extensions of time tolled the limitations
period. But again, those were issues of law. Consequently, we conclude that the trial
court was free to decide the issue of the timeliness of her complaint as a matter of law.
III. CONCLUSION
We hold Mrs. Bove was bound by her admission in her notice of intent that
she became aware of the appellees' possible medical malpractice on February 26,
2012, and, that as a result, the trial court properly determined the issue of the timeliness
of her complaint. We also hold that because her notice of intent was not received by
any of the appellees prior to the expiration of the statute of limitations on February 26,
2014, the limitations period was not tolled and her complaint was untimely filed. We
therefore affirm.
Affirmed.
-9-
LaROSE and SALARIO, JJ., Concur.
- 10 -