Maraj v. North Broward Hospital District
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
BADEWATTE MARAJ and SABINDRANATH MARAJ,
Appellants,
v.
NORTH BROWARD HOSPITAL DISTRICT,
Appellee.
No. 4D07-1917
[July 30, 2008]
TAYLOR, J.
Plaintiffs, Badewatte Maraj and Sabindranath Maraj, appeal the final
summary judgment entered for North Broward Medical District (NBMD)
in this medical malpractice action. The trial court concluded that the
statute of limitations, section 95.11(4)(b), Florida Statutes (2007), had
run with respect to the vicarious liability claim against NBMD. For
reasons stated below, we reverse the summary final judgment.
This action stems from a visit b y Sabindranath Maraj to the
emergency room at North Broward Medical Center, owned and operated
by NBMD, o n September 12, 2001. Mrs. Maraj, then nine months
pregnant and overdue, complained of abdominal pains to Dr. Richard J.
Paley, the emergency room physician on duty. Because North Broward
had no obstetrical unit, Dr. Paley consulted with the obstetrician on call,
Dr. Bliss. Dr. Bliss ordered a biophysical ultrasound, which is used to
determine the health of the fetus. When interpreting the ultrasound, a
doctor considers the movement of the limbs, breathing, gross body
movement, a n d th e level of amniotic fluid.
The doctor creates a
biophysical profile, awarding a maximum of two points in each category.
In this case, radiologist Edward James, M.D. interpreted Mrs. Maraj’s
ultrasound and awarded six out of eight points. However, Dr. James did
not specify that the two missing points were due to a complete lack of
amniotic fluid. Upon receiving Dr. James’s biophysical profile, Dr.
Lawrence Katt discharged Mrs. Maraj.
Five days later, o n September 17, 2001, Mrs. Maraj went to the
emergency room at Broward General Medical Center with the same
complaints: abdominal pain and overdue birth. Dr. Hood performed an
ultrasound and determined that the fetus had died. The Marajs’ stillborn
baby was delivered by caesarian section.
Mrs. Maraj remained at Broward General for four days, during which
time Dr. Hood obtained her medical records from North Broward Medical
Center. The records noted that Dr. James issued the biophysical profile
after interpreting Mrs. Maraj’s ultrasound. During their depositions, the
Marajs stated that Dr. Hood informed them that the records reflected a
complete lack of amniotic fluid. Dr. Hood also told them that when the
doctors at North Broward Medical Center performed the ultrasound, they
should have known there was no amniotic fluid in the sac. He further
attributed the lack of amniotic fluid from September 12 through
September 16 to the baby’s death.
On November 18, 2003,1 assuming that the statute of limitations
began to run on September 17, 2001, the Marajs filed a notice of intent
to initiate an action for medical malpractice under Florida Rule of Civil
Procedure 1.650(b) against Dr. Paley, Dr. Katt, and NBMD. In their
complaint filed April 8, 2004, the Marajs sued Dr. Paley and Dr. Katt for
medical negligence under counts I and II respectively. Under count III,
the complaint alleged that NBMD was “vicariously liable for the negligent
acts and omissions of” doctors Paley and Katt. The Marajs did not
mention Dr. James in the original or amended complaint.
Due to the Marajs’ failure to comply with requirements contained in
chapter 766, Florida Statutes (2003), Dr. Paley and Dr. Katt each filed a
motion to dismiss. Section 766.203(2) requires a medical malpractice
claimant to corroborate the assertion that reasonable grounds exist to
file the claim with “a verified written medical expert opinion from a
medical expert as defined in s. 766.202(6), at the time the notice of intent
to initiate litigation is mailed.” Section 766.202(6) requires an expert to
meet the requirements contained in section 766.102. Because Drs. Paley
and Katt are emergency room doctors, the expert must “have had
substantial professional experience within the preceding 5 years while
assigned to provide emergency medical services in a hospital emergency
department.” § 766.102(9)(a), Fla. Stat.
The notice of intent was timely filed because on August 27, 2003, the
plaintiffs secured an automatic 90-day extension of the statute of limitations
pursuant to § 766.104(2), Fla. Stat.
1
2
The trial court denied both motions to dismiss; however, we reversed
that decision in Paley v. Maraj, 910 So. 2d 282 (Fla. 4th DCA 2005). We
held that the affiant on which the Marajs relied did not constitute a
medical expert under § 766.102(9)(a), Fla. Stat., because the affiant was
not an emergency room physician. Id. at 283. Subsequently, pursuant
to a joint stipulation, the trial court entered a final order of dismissal
with prejudice as to Dr. Paley and Dr. Katt. The trial court also granted
NBMD’s motion to dismiss the vicarious liability claim as to both doctors,
but granted plaintiffs leave to file a second amended complaint.
In the second amended complaint, the Marajs named for the first time
as a defendant Dr. James, the radiologist who had interpreted the
ultrasound at North Broward Medical Center and faxed the report to Drs.
Paley and Katt during Mrs. Maraj’s visit. According to the Marajs, they
did not learn of Dr. James’s involvement until “informe d of the
statements of Dr. Katt and Dr. Paley which took place on February 27,
2004 and March 16, 2004” respectively. In their second amended
complaint, the Marajs also amended their claim against NBMD to allege
vicarious liability as to Dr. James.
NBMD filed a motion for summary final judgment.2 NBMD argued
that, because the statute of limitations had run as to plaintiffs’ claim
against Dr. James, the Marajs could not maintain a claim against the
hospital district for the vicarious liability of Dr. James. The Marajs
countered that the statute of limitations began to run as to Dr. James on
February 27, 2004, when they learned of his involvement. Thus, their
December 13, 2005 notice of intent was timely filed within the two-year
limitations period imposed by § 95.11(4)(b), Fla. Stat. Ultimately, the
trial court entered summary final judgment in favor of NBMD. The
Marajs appealed.
A summary judgment “shall be rendered forthwith if . . . there is no
genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” Florida Rule of Civil Procedure
1.510(c). On appeal, the “standard of review of summary judgment
orders is de novo.” Weinstein Design Group, Inc. v. Fielder, 884 So. 2d
990, 997 (Fla. 4th DCA 2004). We “must examine the record and any
supporting affidavits in the light most favorable to the non-moving
party.” Id. (quoting City of Lauderhill v. Rhames, 864 So. 2d 432, 434
n.1 (Fla. 4th DCA 2003)).
2
Dr. James filed a motion to dismiss, arguing that the notice of intent was not
filed within the period imposed under section 95.11(4)(b), Fla. Stat. The lower
court has not yet ruled on this motion and it is not at issue on appeal.
3
The Marajs contend that the trial court erred in granting summary
final judgment for NBMD. They assert that their suit against NBMD was
timely filed, and that it is immaterial whether the statute of limitations
ran as to Dr. James.3 They argue; simply because the claim against Dr.
James is time-barred, they are not precluded from amending their initial
complaint to include a vicarious liability claim against NBMD based on
Dr. James’s negligence. To support this position, the Marajs rely on Vah
v. Garner Emergency Physicians, P.A., 490 So. 2d 967 (Fla. 5th DCA
1986).
In Vah, the plaintiff filed a complaint against a hospital for vicarious
liability as to an emergency room doctor, Dr. Eisenberg. When the
plaintiff filed suit, the statute of limitations had not yet expired as to Dr.
Eisenberg; however, Vah chose not to sue the doctor individually. While
the action was pending, the statute of limitations period ended, at which
point the hospital moved for summary judgment. The Fifth District
reversed the trial court’s entry of summary judgment for the hospital,
holding that the running of the statute of limitations for the malpractice
action against the doctor did not bar the plaintiff’s action against the
doctor’s employer, the hospital. The court reasoned that, because the
plaintiff had the option of suing either the doctor, the hospital
derivatively, or both, and because he brought his action against the
hospital within the statutory time frame for the doctor’s liability, the suit
against the hospital was not barred.
The facts in this case are similar in that here, as in Vah, the plaintiffs
sued the hospital before the statute had run. However, Vah is somewhat
distinguishable because the vicarious liability claim based o n Dr.
Eisenberg’s negligence was filed against the hospital before the statute
had run. Here, the plaintiffs did not bring their vicarious liability action
against the hospital as to Dr. James until after the expiration of the twoyear period set forth in section 95.11(4)(b), Florida Statutes (2007).
NBMD argues that the difference between the facts in Vah and the
present facts warrants a different outcome, namely, that the Marajs
added th e vicarious liability claim, based on Dr. James’s actions, in
violation of the statute of limitations. Thus, the trial court correctly
granted final summary judgment in its favor.
3
Plaintiffs served the notice of intent to file suit on Dr. James on December 13,
2005, well outside the two-year statute of limitations period.
4
We agree with plaintiffs that their vicarious liability claim as to Dr.
James, added to their second amended complaint, relates back to their
initial and amended complaint and thus is not defeated by the statute of
limitations. Florida Rule of Civil Procedure 1.190(c) provides that an
“amendment . . . relate[s] back to the date of the original pleading”
whenever the claim contained in the amendment arises out of the
“conduct, transaction, or occurrence” attempted to be set forth in the
initial complaint. “An amendment which merely makes more specific
what has already been alleged generally, or which changes the legal
theory of the action, will relate back even though th e statute of
limitations has run in the interim.” Lefebvre v. James, 697 So. 2d 918,
920 (Fla. 4th DCA 1997) (quoting Kiehl v. Brown, 546 So. 2d 18, 19 (Fla.
3d DCA 1989)). Of course, “a party cannot defeat the statute of
limitations by filing a whole new cause of action and labeling it an
amended complaint.” Id.
Contrary to the hospital district’s contention, the plaintiffs in this case
did not file an entirely new and independent cause of action. Instead,
their amended claim arose out of the same occurrence as the claims
included in the original complaint: medical treatment provided Mrs.
Maraj during her visit to the hospital regarding abdominal pains and the
status of her pregnancy.
Th e amended complaint does not raise
additional issues but merely includes additional information, namely,
that Dr. James “interpreted a fetal profile ultra sound evaluation on the
fetus of [Mrs. Maraj] and faxed his interpretation to Dr. Paley and/or Dr.
Katt.” See Cinque v. Ungaro, Weber & Brezing, 622 So. 2d 1051 (Fla. 4th
DCA 1993) (holding, in a wrongful death suit against a medical
partnership, that where a medical partnership was named as a
defendant in the original complaint while the amended pleading, filed
after expiration of the statute of limitations, changed only the name of
the partnership’s allegedly negligent employee, the amendment related
back to the original filing).
Like the plaintiffs in Cinque, the Marajs merely changed the name of
the tortfeasor on whose negligence the vicarious liability claim against
the hospital was based. Additionally, as plaintiffs point out, the original
statutory notice of intent to initiate litigation for medical malpractice
served on NBMD described the claim as being against the hospital “and
any other healthcare provider to be determined through discovery.”
Accordingly, we reverse the trial court’s order granting summary final
judgment for the North Broward Hospital District.
FARMER and STEVENSON, JJ., concur.
5
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Robert B. Carney, Judge; L.T. Case No. 04-5944 04.
Richard F. Hussey of Richard F. Hussey, P.A., Fort Lauderdale, for
appellants.
Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale,
for appellee.
Not final until disposition of timely filed motion for rehearing.
6
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