Florida Patient's Compensation Fund v. Cohen

488 So. 2d 56 (1986)

FLORIDA PATIENT'S COMPENSATION FUND, Petitioner, v. Herbert COHEN, Respondent.

No. 67742.

Supreme Court of Florida.

April 24, 1986.

*57 Steven Billing of Billing, Cochran and Heath, Fort Lauderdale, and Samuel R. Neel, III of Perkins and Collins, Tallahassee, for petitioner.

Spence, Payne, Masington, Grossman and Needle, P.A., and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow and Olin, Miami, for respondent.

SHAW, Justice.

We review Cohen v. Baxt, 473 So. 2d 1340 (Fla. 4th DCA 1985), because of direct and express conflict with Taddiken v. Florida Patient's Compensation Fund, 478 So. 2d 1058 (Fla. 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The district court below held, inter alia, that the two-year statute of limitations for medical malpractice claims, section 95.11(4)(b), Florida Statutes (1983), was not applicable to complaints against the Florida Patient's Compensation Fund. Respondent concedes this was error. We disapprove this portion of the decision below on the authority of Taddiken.

As an alternative ground, the district court also held, assuming section 95.11(4)(b) was applicable, that there was a genuine, material issue of fact as to when respondent discovered his cause of action and thus, whether the cause of action was filed within the two-year limitation. Accordingly, in the district court view, the trial court erred in granting summary judgment to petitioner based on the statute of limitations. We see no error in the district court holding on this point and approve this portion of the decision.

The case is remanded for proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, McDONALD and EHRLICH, JJ., concur.