TORPY, C.J.
Charles N. Baxter, Jr., appeals a final judgment entered in favor of Tod Northrup, D.O., and Flagler Hospital, Inc. (collectively "Appellees") in a medical malpractice case. He contends that the trial court erred by entering summary judgment in favor of Appellees on their statute of limitations defenses. Concluding that a question of fact exists as to when Mr. Baxter knew or should have known of the possibility of medical negligence, we reverse.
Dr. Northrup performed left hip replacement surgery on Mr. Baxter at Flagler Hospital on November 2, 2004. The next day, Mr. Baxter noticed that his leg was numb and that he had a foot drop. Dr. Northrup and medical staff told him that these symptoms would abate after a period of physical therapy. Based upon these assurances, Mr. Baxter continued treatment with Dr. Northrup. When Mr. Baxter's symptoms did not improve, on April 6, 2005, Mr. Baxter saw neurologist Dr. Potter, who advised him that his neurological deficit was likely permanent. Mr. Baxter thereafter sought legal counsel, served a statutory notice of intent on June 25, 2007, and filed the instant malpractice action.
Appellees moved for summary judgment, asserting that the notice of intent and lawsuit were untimely because the statute of limitations, with tolling, had expired on February 1, 2007. They argued that the statute of limitations began to run on November 3, 2004, the day when Mr. Baxter became aware that he had foot drop. The trial court agreed. It granted summary judgment in favor of Appellees, concluding that the statute of limitations commenced to run on November 2, 2004, "upon the Plaintiff's discovery of the injury itself...."
A trial court's ruling on a motion for summary judgment is subject to a de novo standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). It is axiomatic that "[s]ummary judgment is proper [only] if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. When expiration of the statute of limitations is the basis of a summary judgment motion, the movant has the burden of showing "conclusively that there was no genuine issue of fact that the statute of limitations had expired before the filing of the [complaint]." Green v. Adams, 343 So.2d 636, 637 (Fla. 4th DCA 1977). An appellate court must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party; if the slightest doubt exists, summary judgment must be reversed. Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006).
Here, we cannot conclude as a matter of law that Mr. Baxter's post-surgical symptoms were such that medical malpractice was a reasonable possibility. Dr. Northrup himself testified in his deposition that foot drop is a known complication of total hip replacement surgery that is specifically discussed with the patient before surgery. According to Dr. Northrup's interrogatory answers, "[a]n appreciable percentage of foot-drop symptoms occurring after hip replacement cannot be assigned to a cause." As of the date of his deposition, Dr. Northrup still did not know the cause of Mr. Baxter's foot drop. In the opinion of one of the defense experts, a physician, Mr. Baxter's foot drop was "a known and accepted risk of this particular surgery, and it was not due to any negligence on the part of the defendants." It is difficult to envision how a layperson can be charged with the knowledge that particular symptoms suggest an act of negligence when medical professionals, who scrutinize the case with the clarity of hindsight, conclude that the symptoms are the product of unexplained, natural causes.
In deciding this issue, the jury can also take into consideration the post-operative treatment and discussions that occurred. Mr. Baxter specifically pled that he "relied upon the representation of the defendants as to the plaintiff's post-operative surgical symptomatology as being the normal and customary sequelae of the subject surgical procedure." This allegation was not negated in the application for summary judgment, and Mr. Baxter's sworn interrogatory answers support this assertion. As we have previously observed:
Cunningham, 724 So.2d at 180-81.
In Cunningham, the patient's diagnosis and treatment for a staphylococcus infection were delayed by several months while he was being treated for a back injury. The physician continued to treat the patient for his back injury after the infection was diagnosed and the patient ultimately died as a result of a pulmonary embolus. Id. at 177. At one point following the patient's death, the physician told the patient's wife that "there is some things that you ... that just can't be explained," implying that the death was unpreventable and not the result of negligence. Id. at 179. Later, the same physician argued that the statute began to run as soon as the infection was discovered. We held that summary judgment was improper. We quoted with approval the concurring opinion of Justice Kogan in Tanner:
Cunningham, 724 So.2d at 180 (quoting Tanner, 618 So.2d at 185 (Kogan, J., concurring)). We concluded:
Id. at 182.
More recently, our sister court embraced Cunningham and Justice Kogan's concurring opinion in the context of a surgical negligence claim. In Cohen v. Cooper, 20 So.3d 453 (Fla. 4th DCA 2009), following cosmetic surgery, the plaintiff experienced excruciating pain in her eye. For several months after the surgery, the physician continued to treat the plaintiff and assure her that her pain was "normal" and that her recovery would be slow. Id. at 454. At some point when the symptoms did not improve, the plaintiff initiated a malpractice claim. The physician successfully argued to the trial court that the post-operative pain was the event that commenced the running of the statute of limitations. Id. The Fourth District reversed, concluding that issues of fact precluded summary judgment on the statute of limitations defense. It stated that "[a]s a result of [the physician's] assurances that [the plaintiff's] eye condition would improve, [the physician] cannot now claim that [the plaintiff] should have known three days after the initial surgery that
Here, Mr. Baxter claims that similar assurances and non-disclosure dispelled the specter of negligence. Borrowing once again from Cunningham, we conclude:
724 So.2d at 181.
Finally, we have not overlooked Appellees' argument that, alleged representations notwithstanding, the statute commenced to run at the latest on the last day Mr. Baxter treated with Dr. Northrup (March 25, 2005) rather than when Mr. Baxter learned of the permanent injury from Dr. Potter (April 6, 2005). Appellees argue that this is significant because, if the statute commenced to run on March 25, the notice of claim was
REVERSED and REMANDED.
WALLIS, J., concurs.
GRIFFIN, J., dissents without opinion.