Posted on September 19, 2015

In Barrier v. JFK Medical Center Limited Partnership, 2015 Fla. App. LEXIS 9264 (Fla. 4th DCA 2015), Appellees were improperly granted summary judgment in a medical negligence action because the Emergency Temporary Guardian’s knowledge of possible medical negligence could not be imputed to the Ward for statute of limitations purposes during the period of her appointment under Section 744.3031, Fla. Stat. In the subject case, Pamela Barrier (“Appellant”) as Guardian of her incapacitated son, Chad Barrier, filed a medical malpractice claim on her son’s behalf. In February 2010, Chad was transported to JFK Medical Center after an alleged suicide attempt, was discharged less than ten hours later, was readmitted about nine hours later with drugs on his person where he became unresponsive, and fell into a coma while in the custody of the Atlantis Police Department.  Appellant petitioned to be appointed Emergency Temporary Guardian (“ETG”) of Chad’s person and property. On April 13, 2010, the probate court appointed her ETG and issued letters of guardianship granting her all powers and duties given to a plenary guardian of the person and property. The letters of guardianship provided that her authority expired in sixty days. On May 19, 2010, before the temporary guardianship expired, Chad was determined to be incompetent, and Appellant was appointed Plenary Guardian of her son’s Person and Property.

On July 19, 2012, after having received the ninety-day extension of the statute of limitations under Section 766.104(2), Fla. Stat., Appellant served notices of intent to initiate litigation for medical malpractice on his medical providers (“Appellees”). She followed up by filing a complaint for medical negligence. Appellees answered and alleged that the statute of limitations had run on the causes of action. They alleged that Appellant would have learned of their medical negligence on the date of the incident, because Chad was an otherwise healthy individual, and his sudden pulmonary arrest and brain injury cannot be considered “likely to have occurred from natural causes.” They argued Appellant’s knowledge was imputed to Chad when Appellant was appointed Chad’s ETG on April 13, 2010, thereby triggering the statute of limitations. Appellant filed a response arguing that her appointment as ETG did not impose a duty to file a malpractice suit, which duty arose only after she was appointed Plenary Guardian on May 19, 2010. Thus, according to Appellant, the statute of limitations did not run out until August 17, 2012, making her notices timely. Additionally, she argued there were disputes of material fact as to whether she had sufficient notice to trigger the statute of limitations.

The court granted summary judgment for Appellees. It found that, upon her appointment as Chad’s ETG, Appellant had a duty to investigate a possible medical malpractice claim on his behalf. The court reasoned that the April order appointing her ETG specifically indicated it was imposing the duties of a plenary guardian. The court found that Appellant’s knowledge of the injury itself was sufficient to trigger the statute of limitations as of the date of her appointment as ETG, attributing to her knowledge contained in the medical records.

The main issue on appeal for the Fourth DCA was whether Appellant’s appointment as ETG created a legal duty towards Chad such that any knowledge of malpractice Appellant may have acquired could be imputed to her son, triggering the commencement of the statute of limitations. The Fourth DCA ultimately held that Appellant’s knowledge, if any, of the possibility of medical negligence could not be imputed to her son for purposes of the running of the statute of limitations during the period of her appointment as ETG. They found that such imputation of knowledge could not occur until the Ward was declared incompetent and a permanent guardian of the property was appointed. Running the statute of limitations from the date of Appellant’s appointment as permanent guardian, the notices of intent to initiate medical malpractice litigation were held to be timely served within the two years allowed pursuant to Section 95.11(4)(b), Fla. Stat.

In coming to this conclusion, the Fourth DCA noted that the appointment of an emergency temporary guardian is an interim measure for the time period between the filing of a petition to determine incapacity and the actual determination of incapacity. By conferring rights on the emergency temporary guardian. the court temporarily removes these rights from the allegedly incapacitated person. Additionally, the Fourth DCA noted that the order appointing Appellant as ETG did not specifically enumerate the powers Appellant could exercise. Instead, the order simply stated that she had all powers and duties given to a plenary guardian of the person and property. It did not specifically enumerate the power or duty to sue. An important part of the statutory framework is that an emergency temporary guardian’s powers be “specifically enumerated by court order.” The opinion states that in another case where letters of guardianship for an emergency temporary guardian gave plenary powers to the emergency temporary guardian without listing those powers, the Fifth DCA indicated its disapproval of the practice of giving unenumerated plenary powers to an emergency temporary guardian.  Batzle v. Baraso, 776 So.2d 1107, 1109 (Fla. 5th DCA 2001). The Fourth DCA court had previously held that the potential knowledge of an emergency temporary guardian of medical malpractice should not be imputed to an incapacitated individual for the purposes of computing the running of the statute of limitations. See, Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995).

Chad was not declared incapacitated and Appellant was not appointed his Plenary Guardian until May 19, 2010. Based upon that date, the action for malpractice at issue was filed within the statute of limitations. Since the appointment of an emergency temporary guardian is an interim measure, which gave the mother only the authority to make medical decisions for her son and manage his medical and financial affairs until the appointment of a permanent guardian, she did not have a duty as ETG to file a malpractice suit on his behalf.  Knowledge of the medical malpractice can only be imputed from the date the permanent plenary guardian was appointed. 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’s duty, to protect the ward’s interest.  See, Thomas v. Lopez, 982 So.2d 64, 68 (Fla. 5th DCA 2008).

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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