No. 80-2335 | Fla. Dist. Ct. App. | Dec 28, 1982
The trial court, finding that the appellants’ wrongful death action was limitations-barred under Section 95.11(4)(b), Florida Statutes (1979), entered summary judgment for Dr. Ash. We reverse upon holdings that (1) a wrongful death action, when, as here, brought within two years from the time of death of the injured party, is not limitations-barred, Perkins v. Variety Children’s Hospital, 413 So. 2d 760" date_filed="1982-01-12" court="Fla. Dist. Ct. App." case_name="Perkins v. Variety Children's Hosp.">413 So.2d 760 (Fla. 3d DCA 1982); see also Bruce v. Byer, 423 So. 2d 413" date_filed="1982-11-17" court="Fla. Dist. Ct. App." case_name="Bruce v. Byer">423 So.2d 413 (Fla. 5th DCA 1982); and (2) even if, arguendo, the action were required to be brought within two years from the time the incident giving rise to the action was discovered or should have been discovered with the exercise of due diligence, the fact that Mrs. Stella’s malignancy was correctly diagnosed two years and several days prior to the commencement of the action does not conclusively establish as a matter of law that she then should have known that Dr. Ash misdiagnosed her condition in 1975, since Mrs. Stella’s knowledge of her true condition is but a factor among others in evaluating whether she should have discovered the defendant’s asserted malpractice. Nolen v. Sarasohn, 379 So. 2d 161" date_filed="1980-01-22" court="Fla. Dist. Ct. App." case_name="Nolen v. Sarasohn">379 So.2d 161 (Fla. 3d DCA 1980); Schalm v. Mount Clemens General Hospital, 82 Mich.App. 669, 267 N.W.2d 479 (1978).
Reversed and remanded.