final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 13-34634, Thomas J. Rebull, Judge.
Carlyle Appellate Law Firm and Christopher V. Carlyle
(Orlando), for appellants.
Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and
Glenn P. Falk, Richard A. Warren and Scott E. Solomon, for
FERNANDEZ, LOGUE and MILLER, JJ.
plaintiffs, Misty Mobley and her husband, Tavaris Sanders
(collectively referred to as the Mobleys), individually and
on behalf of their minor son, Tavarion Sanders, appeal the
trial court's "Order on Defendant, Homestead
Hospital, Inc. d/b/a Homestead Hospital's Motion for
Summary Final Judgment and Entry of Final Judgment"
rendered on January 2, 2018. As we are unable to find the
absence of a genuine issue of material fact with respect to
the date that the statute of limitations began to run in this
case, we reverse the Summary Final Judgment entered in
Homestead Hospital, Inc.'s favor.
a complex medical malpractice case involving the delivery of
a baby born with a neurological injury allegedly due to the
improper care by defendants Homestead Hospital, Inc.
("Homestead Hospital"), Mohammad Shahmohamady,
M.D., Mohammad Shahmohamady, M.D., P.A., and Manuel Antonio
Cuello. Tavarion was born on September 16, 2009. At the time
of the delivery, neither the hospital nor Dr. Shahmohamady
(the delivering doctor) advised the Mobleys that Tavarion
suffered any injuries during delivery. Tavarion was kept in
the hospital for ten days after his birth, Ms. Mobley was
told, due to an infection. On September 17, 2009, an
ultrasound of Tavarion's brain was performed at Homestead
Hospital and reported by Dr. Kenneth Mendelson as an
"unremarkable head ultrasound." At the time
Tavarion was discharged, Mrs. Mobley was told he was healthy
and normal. Months later, the Mobleys began to notice that
Tavarion was not meeting certain developmental milestones.
Tavarion's birth, Mrs. Mobley visited several doctors and
specialists to find out what was wrong with her son. In
January 2010, Tavarion's pediatrician, Dr. Amador at
QualMed of South Dade, Inc., diagnosed him with GERD and a
lazy eye. Nothing else was diagnosed. In March 2010, Tavarion
was evaluated by Dr. Charria-Ortiz, a neurologist with
Jackson Ambulatory Care Pediatric, for vomiting and delays.
Dr. Charria-Ortiz diagnosed Tavarion with gastroesophageal
reflux disease (GERD) and nothing else. On April 14, 2010,
Tavarion was seen by one of his specialists, pediatric
gastroenterologists Dr. Raghad Koutouby, and diagnosed only
with vomiting. An April 2010 CT scan performed on Tavarion
showed an old fractured skull injury.
2010, Mrs. Mobley requested additional Medicaid benefits for
Tavarion but was denied. On May 26, 2010, Mrs. Mobley stated
she met with attorney Jorge Silva to secure benefits for
Tavarion, including therapies and home nursing. Mrs. Mobley
denied that she retained Mr. Silva's law firm in order to
purse a medical malpractice claim. When Mrs. Mobley met with
Mr. Silva, no doctor had said anything about Tavarian having
a brain injury or diagnosed Tavarion with a brain injury. On
May 27, 2010, Mr. Silva sent a letter to Homestead Hospital
as a formal request to the hospital for Tavarion's
medical records under section 766.204, Florida Statutes
(2009). On July 20, 2010, Mr. Silva sent a follow-up letter
requesting additional records that he had not received. Mr.
Silva's firm stopped representing Mrs. Mobley in early
October 19, 2011, attorney Ronald Gilbert filed a NICA
(Florida's Birth-Related Neurological Injury Compensation
Association) petition pursuant to section 766.301, Florida
Statues (2009), on Mr. Mobley's behalf. NICA denied Mrs.
Mobley's petition because their experts opined that there
was "no apparent obstetrical event," and Tavarion
did not have substantial mental impairment. Mrs. Mobley
received notice of the dismissal of her petition on August
2, 2012, a second brain MRI was performed on Tavarion. The
results were "normal" as per Dr. Papazian. On
November 20, 2012, after Tavarioin had a follow-up MRI,
Tavarion's neurologist, Dr. Mojtabaee, diagnosed him for
the first time with spastic cerebral palsy, and Mrs. Mobley
was informed that this type of cerebral palsy most often is
caused from lack of oxygen to the infant's brain during
labor and delivery and delayed c-sections. As a result of
this information, Mobley retained the law firm of
Diez-Arguelles & Tejedor for investigating the medical
malpractice case. Every doctor who treated Tavarion from the
time of his birth in 2009 through 2012 reported the cause of
his injuries as "unknown" and/or related to a
genetic issue. On June 7, 2013, Berto Lopez, MD, reviewed
Tavarion's medical records and opined that Tavarion's
injuries were result of medical malpractice.
22, 2013, a Notice of Intent was filed, and on November 5,
2013, the Mobleys filed their complaint against Homestead
Hospital, the delivering doctor, Dr. Mohammad Shahmohamady,
M.D., and his P.A., as well as the surgical assistant, Manuel
Antonio Cuello, for medical malpractice related to the birth
of Tavarion. An amended complaint was filed on January
29, 2014. On August 11, 2017, Homestead Hospital filed a
motion for summary judgment claiming that the Mobleys'
lawsuit was barred by the statute of limitations that the
hospital claims expired, at the latest, on June 21, 2013. The
trial court granted Homestead Hospital's motion on the
basis that the hospital was entitled to summary judgment as a
matter of law because the Mobleys' lawsuit was barred by
the statute of limitations.
appeal from the trial court's order granting the
hospital's motion for summary judgment, the Mobleys
contend there is a genuine issue of material fact with
respect to when the statute of limitations began to run in
this case. The Mobleys claim that the statute of limitations
began to run in November 2012 when Tavarion was examined by
Dr. Mojtabaee and his nurse, who informed Mrs. Mobley for the
first time that Tavarion's diagnosis of spastic cerebral
palsy might be related to his delivery. Homestead Hospital,
on the other hand, argues it was entitled to summary judgment
because under section 95.11(4)(b), Florida Statutes (2013),
the statute of limitations on the Mobley's claim had
already expired. The hospital contends that May 27, 2010 is
the date that should be used as the date that the statute of
limitations started to run because that is the date ...