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Mobley v. Homestead Hospital, Inc.

Florida Court of Appeals, Third District

December 26, 2019

Misty MOBLEY and Tavaris Sanders, Appellants,

Page 988

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 13-34634, Thomas J. Rebull, Judge.

          The Carlyle Appellate Law Firm and Christopher V. Carlyle (Orlando), for appellants.

         Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and Glenn P. Falk , Fort Lauderdale, Richard A. Warren , Miami, and Scott E. Solomon , Coral Gables, for appellee.

         Before FERNANDEZ, LOGUE and MILLER, JJ.

         FERNANDEZ, J.

         The 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.

         This is 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.

         After 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

Page 989

with vomiting. An April 2010 CT scan performed on Tavarion showed an old fractured skull injury.

         In 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 2010.

         On October 19, 2011, attorney Ronald Gilbert filed a NICA (Florida's Birth-Related Neurological Injury Compensation Association) petition pursuant to section 766.301, Florida States (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 16, 2012.

         On July 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.

         On July 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.[1] 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.

         On 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 ...

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