Jennifer Bonner Givens, et al. v. Mark S. Josovitz, et al.

After an elevated PSA test in October 2000, Dr. Josovitz referred Decedent to a urologist. After an even higher PSA level on retest, the urologist performed a biopsy, which was benign. Despite being informed of his need for additional PSA testing, decedent did not return to the urologist, and, despite routinely seeing decedent for other health issues, Dr. Josovitz did not again discuss the need for repeat testing with decedent until 2004. In May 2004, decedent was diagnosed with advanced prostate cancer, and he died in September 2005. Plaintiffs' expert testified that decedent's prostate cancer must have been diagnosed by December 2001 in order for decedent to survive. However, it is undisputed that the defendants had no knowledge of his prostate cancer by that time. Plaintiffs filed suit in this case beyond the three-year statute of repose for medical malpractice. Because they are unable to prove defendants had knowledge of decedent's prostate cancer, fraudulent concealment is unavailable to toll the statute of repose. Accordingly, we find that plaintiffs' wrongful death claim is barred by the statute of repose and further that plaintiffs are not entitled to recover damages for pain and suffering. Summary judgment is granted to defendants, and the trial court's dismissal of plaintiffs' claim is affirmed.