Can An Act Giving Rise to Negligence Also Be the Act Giving Rise to Fraudulent Concealment In Medical Malpractice Cases ?
In Myklejord v. Morris, 766 So. 2d 1160 (Fla. 5th DCA 2000), the appellant's cancer was not detected by the appellee health care providers. the appellant claimed the health care providers were negligent in failing to diagnose the cancer.
Appellant's claim was filed more than six years after the alleged negligent act occurred. Judge Pleus found:
The complaint does not set forth any facts which would establish a basis to extend the statute of repose beyond four years.
"Concealment" required to extend the statute of repose in medical malpractice matters to seven years requires fraud, intent to conceal or some other active element. Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976).
See also Almengor v. Dade County, 359 So. 2d 892 (Fla. 3d DCA 1978).
Concealment also requires knowledge (by the tortfeasor) about plaintiff's condition which is not conveyed to plaintiff. Nardone, 333 So. 2d at 37.
In such instances, the plaintiff is being actively misled about his or her true condition by the tortfeasor.
Conceptually, this intentional withholding of information acts to delay plaintiff's ability to discover the tortfeasor's wrongdoing or the nature of the injury itself.
The court found no rational basis for making negligent diagnosis subject to a seven-year repose period where other acts of simple negligence are governed by a four-year period. Myklejord, 766 So. 2d at 1162.
Judge Sawaya concurred in result only, and Judge Dauksch dissented.
Judge Dauksch also relied on Nardone but came to the opposite conclusion:
It is clear that the Florida Supreme Court [in Nardone] intends that a duty is to be imposed on a physician when an adverse condition (malignant cells on a slide for example) is either known to the doctor or is readily available to him/her through "efficient diagnosis."
It is undisputed that the diagnosis here by Morris was inefficient.
See also Mangoni v. Temkin, 679 So. 2d 1286 (Fla. 4th DCA), rev. dismissed, 686 So. 2d 582 (1996), in which the court held that the act giving rise to the negligence action may also be the act which gives rise to the fraudulent concealment action which would extend the Statute of Repose to up to seven years. Myklejord, 766 So. 2d at 1163 (Dauksch, J., dissenting).