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Barrier v. JFK Medical Center LP et al., Case No. 4D13-3041 (4th DCA)

Barrier is a medical malpractice action filed by a plaintiff who had been appointed guardian of her incapacitated son, Chad Barrier. The trial court entered summary judgment in favor of the defendants finding that the limitation period had run from the date when the plaintiff was appointed emergency temporary guardian and expired prior to suit being filed. Holding that the knowledge of the plaintiff of possible malpractice may not be imputed to her son until he is determined to be incapacitated and she is appointed permanent guardian, the Fourth District reversed.

Chad Barrier suffered cardiac arrest and went into a coma in February 2010 following treatment at JFK Medical Center. On April 13, 2010, a probate court appointed the plaintiff Chad;s emergency temporary guardian, and issues letters of guardianship which were to expire sixty days later. On May 19, 2010, before the temporary guardianship expired, and while Chad remained in a coma, the plaintiff was appointed Chad's plenary guardian of his person and property. On July 19, 2012, after having received the ninety day extension of the statute of limitations under section 766.104(2), Florida Statutes, the plaintiff served notices of intent to initiate litigation for medical malpractice on the defendants. The defendants later argued that the plaintiff's knowledge was imputed to Chad when she was appointed temporary guardian on April 13, 2010, thereby triggering the statute of limitations. The trial court agreed, and entered summary judgment in the defendant's favor.

The issue on appeal was whether the plaintiff's appointment as emergency temporary guardian created a legal duty towards Chad such that any knowledge of malpractice the plaintiff may have acquired could be imputed to her son and thus trigger the statute of limitations period. The Fourth District noted that an action for medical malpractice must commence within 2 years from the time the incident giving rise to the action occurs or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence. To trigger the statute, the plaintiff must have both knowledge of the injury and knowledge that there is a reasonable possibility that the injury was caused by medical malpractice. The court further noted that the use of the word "discovered" demonstrated a legislative intent for there to be an ability of conscious awareness on the part of a victim of alleged malpractice to trigger the statute to run. "Where the victim was blind, deaf, and senile, he could not 'discover' the action." "Where the victim of the malpractice is an adult, knowledge of another cannot be imputed to him unless that person has a legal duty, such as a guardian' duty, to protect the ward's interest.

The Fourth District explained that the purpose of an emergency temporary guardian "is to protect a person who has not as yet been declared incapacitated, where there is imminent danger to the person's health, safety, or property." The temporary guardian is therefore an interim measure for the period between the filing of a petition to determine incapacity and the actual determination of incapacity. The Fourth District ruled that the temporary nature of an emergency temporary guardian's appointment does not impose a legal duty on the temporary guardian to protect the ward's interest in a medical malpractice suit. The temporary guardian's purpose is to secure the health and safety of the temporary ward until his capacity can be determined. This does not contemplate the pursuit of a medical malpractice claim, which requires the retention of experts and careful analysis that cannot be completed within the short duration of a temporary guardianship. As such, whether a temporary guardian had knowledge of the possibility of medical malpractice should not be imputed to the ward to commence the running of the statute of limitations. Rather, knowledge may be imputed from the sate a permanent plenary guardian is appointed.

Chad was not declared incompetent, and the plaintiff was not appointed plenary guardian, until May 19, 2010. Based upon that date, the action was filed within the limitations period. Therefore, the Fourth District reversed.

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