Dennis MOSLEY, Appellant, v. AMERICAN MEDICAL INTERNATIONAL, INC. d/b/a AMI North Ridge Medical Center, A Delaware Corp., Emergency Medical Services Associates, Ltd A/k/a EMSA Limited Partnership, Robert Elliot, M.D., North Broward Hospital District, d/b/a North Broward Medical Center, Samue Chukwuma, M.D., Daniel R. Kanell, M.D., Daniel Kanell, and Georges Boutin, M.D. Appellees.
No. 96-4163
District Court of Appeal of Florida, Fourth District
June 10, 1998
712 So.2d 1149
Clark J. Cochran, Jr. of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, for Appellee American Medical Internatiоnal, Inc., d/b/a AMI North Ridge Medical Center.
Caryn Bellus-Lewis of Kubicki Draper, Miami, for Appellees Emergency Medical Services Associates, Ltd., a/k/a E.M.S.A., and Robert Elliott, M.D.
Linda R. Spaulding of Conrad, Sherer & Jenne, Fort Lauderdale, for Appellees North Broward Hospital District, d/b/a North Broward Medical Center, and Samue Chukwuma, M.D.
John Beranek of Ausley & McMullen, Tallahassee, and Loreen Kreizinger, Fort Lauderdаle, for Appellees Daniel R. Kanell, M.D., and Kanell, Daniel R., M.D., P.A.
Shelley H. Leinicke of Wicker, Smith, Tutan, O‘Hara, McCoy, Graham, & Ford, P.A., Fort Lauderdale, for Appellee Georges Bоutin, M.D.
ON MOTIONS FOR REHEARING, CLARIFICATION AND CERTIFICATION
PER CURIAM.
We withdraw the previous opinion of the court, substitute the following, grant the motions for rehearing and clarification and deny the motions for certification.
On April 29, 1990, two unknown assаilants attacked appellant as he was leaving his place of business. Appellant was treated by several health care providers following the incident. Due tо their alleged failure to properly diagnosis his condition, his original injury was aggravated, which resulted in paralysis of the peroneal nerve and a drop foot. In addition tо committing medical negligence, appellant contends two health care providers engaged in fraud, or conspired to commit fraud, by covering up the fact that appellant‘s injury was aggravated by their negligence.
Appellant sued the numerous health care provider appellees for medical negligence, fraud аnd conspiracy to commit fraud. Appellees moved for summary judgment based on a release appellant had signed settling his claim against the building owners and their insurer for $20,000. For purposes of summary judgment, appellees accepted the facts as asserted by appellant.
The trial court granted summary final judgment in favor of all the defеndants/appellees.
We agree the dispоsitive issue in the case was not whether appellant intended to release appellees from liability. Although appellant alleges that he did not know the causе of his permanent injury, he does not dispute that he was aware of all of his injuries, including his permanent injury, at the time he settled with the initial tortfeasor. According to the releasе, appellant‘s settlement with the initial tortfeasor was intended to cover all of his “known injuries.”
In addition to being held responsible for the injuries sustained by a victim as a result of the original tort, an initial tortfeasor is also liable for any additional or aggravated injuries subsequently caused by the negligence of health care providers. Rucks v. Pushman, 541 So.2d 673, 675 (Fla. 5th DCA 1989). Ordinarily, a victim has thе option of either recovering from the initial tortfeasor for the full extent of his injuries, including any injuries caused by the subsequent negligence of health care providers, or recovering from the initial tortfeasor and the negligent health care providers separately. Id. A victim may not, however, recover from both the initial tortfeasor and the negligent health care providers for thе same injuries. Id.
In McCutcheon v. Hertz Corp., 463 So.2d 1226 (Fla. 4th DCA 1985), this court held that a plaintiff who accepted an offer of judgment from an initial tortfeasor, which included damages for an injury caused by the subsequent negligencе of a physician, could not thereafter maintain an action against the physician. This court concluded that the plaintiff was precluded from suing the physician for mediсal negligence because she had already accepted compensation that provided damages for all of her injuries. Since only one cause оf action could be brought against the physician, this court determined that it resided in the initial tortfeasor because of the doctrine of equitable subrogation adoptеd by the Supreme Court of Florida in Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980). The rationale was to prevent (1) the victim from receiving double recovery and (2) the subsequent tortfeasor from being exposed to doublе liability to both the victim for damages and the initial tortfeasor under the doctrine of equitable subrogation.
In the case sub judice, it is undisputed that appellant settled with the initial tоrtfeasor for all of his known injuries and that he was aware of the full extent of his injuries at the time of settlement. If appellant is permitted to pursue a medical negligence action against appellees, he would have the potential of recovering twice for the same injuries. Therefore, we affirm the summary final judgment as to the medical negligence counts.
As to the separate counts for fraud and conspiracy to commit fraud, appellees argue that they were not intended to reprеsent independent torts because appellant pleaded those counts for the purpose of extending the statute of limitations on his medical negligence сounts. See
To prevail on a theory of fraudulent misrepresentation, a plaintiff must plead: (1) a false statement of fact; (2) known by the defendant to be false at the time that it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage or injury. Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994).
In count VI for fraud, appellant alleged that (1) appellee Georges Boutin told him that the cause of his permanent injury was a result of the original tort; (2) Boutin knew his representation as to the cause of appellant‘s injury was false; (3) Boutin mаde
While appellant may have initially pleaded the fraud and conspiracy to commit fraud counts, in part, to extend the statute of limitations, appellees who are the subjects of these counts prеcluded appellant from exercising his option of suing them in a separate lawsuit for medical negligence by allegedly concealing the true cause of his permanent injury. Where it is apparent from the affidavits and legal arguments that an appellant may have a cause of action not pleaded, we have held the рroper procedure is to grant summary judgment with leave to the party to amend. Allen v. Port Everglades Auth., 553 So.2d 1341, 1343 (Fla. 4th DCA 1989); Grosso v. American Tel. & Tel. Co., 691 So.2d 604 (Fla. 4th DCA 1997).
Accordingly, we also affirm the summary judgment as to counts VI and VII without prejudice to appellant to amend his complaint within a reasonable period of time as determined by the trial court.
GLICKSTEIN, DELL and POLEN, JJ., concur.