Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984). · Go Syfert
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Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984). Cases Citing This Book View Copy Cite
138 citation events (35 in the last 25 years) across 43 distinct courts.
Strongest positive: Nkemakolam ex rel. K.N. v. St. John's Military School (ksd, 2012-08-20)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 33 distinct citers.
discussed Cited as authority (rule) Nkemakolam ex rel. K.N. v. St. John's Military School
D. Kan. · 2012 · confidence medium
Were the rule otherwise, every case would be subject to constant retrials in the guise of independent actions. 734 P.2d at 1183 (quoting Bondu v. Gurvich, 473 So.2d 1307, 1313-1314 (Fla.Dist.Ct.App.1984) (internal citation omitted) (Schwartz, dissenting)).
cited Cited as authority (rule) James v. U.S. Airways, Inc.
M.D. Fla. · 2005 · confidence medium
In Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984), the Third District Court of Appeal recognized such a cause of action after considering longstanding principles of negligence.
discussed Cited as authority (rule) Royal & Sunalliance v. LAUDERDALE MARINE
Fla. Dist. Ct. App. · 2004 · confidence medium
Co., 236 F.Supp.2d 1303, 1309 (N.D.Fla.2002) (citing Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984); Miller v. Allstate, 573 So.2d 24, 27 (Fla. 3d DCA 1990); Strasser v. Yalamanchi, 783 So.2d 1087, 1093-94 (Fla. 4th DCA 2001)).
cited Cited as authority (rule) Fletcher v. Dorchester Mutual Insurance
Mass. · 2002 · confidence medium
See Hazen v. Anchorage, 718 P.2d 456, 463 (Alaska 1986); Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. Dist.
discussed Cited as authority (rule) Strasser v. Yalamanchi
Fla. Dist. Ct. App. · 2001 · confidence medium
A cause of action for negligence consists of three elements that must be pled and proved: "(1) [T]he existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others ...; (2) a failure on the part of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure." Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984).
discussed Cited as authority (rule) Trevino v. Ortega (2×)
Tex. · 1998 · confidence medium
Maintenance Co., 169 Cal.App.3d 874 , 215 Cal. Rptr. 504, 506 (1985) (negligent); Smith v. Superior Court, 151 Cal.App.3d 491 , 198 Cal.Rptr. 829, 832-33 (1984) (intentional); Bondu v. Gurvich, 473 So.2d 1307, 1312-13 (Fla.Dist.Ct.App. 1984) (negligent); Callahan v. Stanley Works, 306 N.J.Super. 488 , 703 A.2d 1014, 1017-19 (1997) (negligent); Coleman v. Eddy Potash, Inc., 120 N.M. 645 , 905 P.2d 185, 189 (1995) (intentional); Smith v. Howard Johnson Co., 67 Ohio St.3d 28 , 615 N.E.2d 1037 (1993) (intentional). [4] Embracery is "[t]he crime of attempting to influence a jury corruptly to one si…
discussed Cited as authority (rule) Austin v. Consolidation Coal Co.
Va. · 1998 · confidence medium
The elements are: (1) pending or probable *82 litigation involving the plaintiff; (2) knowledge on part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by the defendant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5) damages proximately caused by the defendant’s acts.” Austin cites the following authorities in support of his position: Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986); Smith v. Superior Ct., 198 Cal. Rptr. 829, 837 (Ct. App. 1984); Bondu v. Gurvich, 473 So. 2d 1307, 1312-13 (…
discussed Cited as authority (rule) Holmes v. Amerex Rent-A-Car
D.C. · 1998 · confidence medium
Co., 79 Ohio App.3d 624 , 607 N.E.2d 944, 947-48 (1992) (citing Koplin, supra); Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984) (holding that an action for negligent spoliation of evidence, like any negligence action, requires showing “the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff”). *850 For the purposes of this certified question, we are assuming that a duty of care existed which was derived from a contractual relationship to transfer ownership of the car wre…
cited Cited as authority (rule) Urban v. Dollar Bank
pactcomplallegh · 1996 · confidence medium
(Hazen v. Municipality of Anchorage, 718 P.2d 456, 463-64 (Alaska 1986); Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.App. 1984); Rodgers v. St.
discussed Cited as authority (rule) Coleman v. Eddy Potash, Inc. (2×)
N.M. · 1995 · confidence medium
Florida recognized a cause of action for the negligent spoUation of evidence in Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984), review denied, 484 So.2d 7 (Fla.1986).
cited Cited as authority (rule) Bush v. Thomas
N.M. Ct. App. · 1994 · confidence medium
Co., 573 So.2d 24, 27 (Fla.Dist.Ct.App.1990), review denied, 581 So.2d 1307 (Fla.1991); Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla.Dist.Ct.App.1984), review denied, 484 So.2d 7 (Fla.1986).
cited Cited as authority (rule) Coker v. Wal-Mart Stores, Inc.
Fla. Dist. Ct. App. · 1994 · confidence medium
See generally, Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 8 (Fla. 1986); and Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984), rev. denied, sub nom.
discussed Cited as authority (rule) Brewer v. Dowling (2×)
Tex. App. · 1993 · confidence medium
Co., 169 Cal. App.3d 874 , 215 Cal.Rptr. 504, 506 (Cal.Ct.App. 1985); Smith v. Superior Court for the County of Los Angeles, 151 Cal.App.3d 491 , 198 Cal.Rptr. 829, 832 (Cal.Ct.App.1984); Bondu v. Gurvich, 473 So.2d 1307, 1313 (Fla.Dist.Ct.App.1984).
cited Cited as authority (rule) Baugher v. Gates Rubber Co., Inc.
Mo. Ct. App. · 1993 · confidence medium
Bondu, 473 So.2d at 1311, 1313 . 4 ’ 5 The circumstances of this case support the application of the established rule that a cause of action does not arise until an injury is suffered.
cited Cited as authority (rule) Brown v. Hamid
Mo. · 1993 · confidence medium
Bondu v. Gurvich, 473 So.2d 1307, 1313 (Fla.App.1984). 4 .
cited Cited as authority (rule) Rouzie v. Alterman Transport Lines, Inc.
Fla. Dist. Ct. App. · 1992 · confidence medium
Seitz v. Surfside, Inc., 517 So.2d 49, 50 (Fla. 3d DCA 1987), review denied, 525 So.2d 880 (Fla.1988); Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. 3d DCA 1984), review denied sub nom.
examined Cited as authority (rule) Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc. (6×) also: Cited "see"
Minn. · 1990 · confidence medium
Co., 365 F.Supp. 277, 281-82 (E.D.Pa.1973); Bondu v. Gurvich, 473 So.2d 1307, 1312-13 (Fla.Dist.Ct.App.1984), cert. denied, 484 So.2d 7 (Fla.1986); Coley v. Arnot Ogden Memorial Hosp., 107 A.D.2d 67, 68-69 , 485 N.Y.S.2d 876, 878 (N.Y.App.Div.1985).
discussed Cited as authority (rule) Petrik v. Monarch Printing Corp.
Ill. App. Ct. · 1986 · confidence medium
Thus, what the court characterizes at page seven of its opinion as an “a fortiori” situation is instead a complete non-sequitur.” (Emphasis in original.) 473 So. 2d 1307, 1314 (Schwartz, C.J., dissenting in part).
cited Cited "see" Reddy v. Zurita
Fla. Dist. Ct. App. · 2015 · signal: see · confidence high
See Assad, 550 So.2d at 54 (citing Bondu v. Gurvich, 473 So.2d 1307 , 1310 n. 2 (Fla. 3d DCA 1984)).
discussed Cited "see" American Bankers Life Assur. v. 2275 West
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Cardona v. Benton Exp., Inc., 804 So.2d 505, 507 (Fla. 3d DCA 2001)(citing Bondu v. Gurvich, 473 So.2d 1307 , 1311 n. 2 (Fla. 3d DCA 1985), and confirming that it is an abuse of discretion to allow an amendment following summary judgment hearing if doing so injects a new cause of action). [3] This determination, of course, disposes of the need to address American Bankers' point on direct appeal regarding attorney's fees.
examined Cited "see" Silhan v. Allstate Insurance (3×)
N.D. Fla. · 2002 · signal: see · confidence high
See Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.Ct.App.1984).
cited Cited "see" Lincoln Ins. Co. v. Home Emergency Services, Inc.
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984); see also Miller v. Allstate Ins.
cited Cited "see" Goff v. Harold Ives Trucking Co., Inc.
Ark. · 2000 · signal: see · confidence high
See Bondu v. Gurvich, 473 So. 2d 1307 (Fla. App. 1985); Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Hirsch v. General Motors Corp., 628 A.2d 1108 (N.J.
examined Cited "see" Oliver v. Stimson Lumber Co. (6×)
Mont. · 1999 · signal: see · confidence high
See Bondu, 473 So.2d at 1309-10 .
cited Cited "see" Larison v. City of Trenton
D.N.J. · 1998 · signal: see · confidence high
See the strident dissent by Chief Judge Schwartz of the Florida Supreme Court in Bondu, supra, wherein he noted, [U]pon reconsideration ...
cited Cited "see" O'CONNELL v. Killington, Ltd.
Vt. · 1995 · signal: see · confidence high
See Bondu v. Gurvich, 473 So. 2d 1307, 1313 (Fla. Dist.
discussed Cited "see" Hirsch v. General Motors Corp. (2×)
N.J. Super. Ct. App. Div. · 1993 · signal: see · confidence high
See Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. Dist.
discussed Cited "see" Wayne Creasy Agency, Inc. v. Maillard
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Assad v. Mendell, 550 So.2d 52, 54 (Fla. 3d DCA 1989) (quoting Bondu v. Gurvich, 473 So.2d 1307 , 1310 n. 2 (Fla. 3d DCA 1984)), review denied, 484 So.2d 7 (Fla. 1986) (citing Greenburg v. Johnston, 367 So.2d 229 (Fla. 2d DCA 1979)).
cited Cited "see" Murphy v. Target Products
Ind. Ct. App. · 1991 · signal: see · confidence high
See Bondu v. Gurvich (Fla.App.1984), 473 So.2d 1307 , reh. denied (Fla.1986), 484 So.2d 7 .
cited Cited "see" Couch Construction Co. ex rel. Kimmins Corp. v. Florida Department of Transportation
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See Bondy v. Gurvich, 473 So.2d 1307 (Fla. 3rd DCA 1984), rev. denied, 484 So.2d 7 (Fla.1986); Hialeah Race Course, Inc. v. Gulf Stream Park Racing Association, 210 So.2d 750 (Fla. 4th DCA 1968).
discussed Cited "see" Valcin v. Public Health Trust of Dade County
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Bondu v. Cedars of Lebanon Hospital Care Center, Inc., 473 So.2d 1307 (Fla. 3d DCA 1984) (Case Nos. 81-968 and 81-969, opinion filed this date). [8] However, in many of these cases it has been held that some showing of bad faith must be made before the inference, see, e.g., Soria v. Ozinga Bros., Inc., 704 F.2d 990 (7th Cir.1983); Vick v. Texas Employment Comm'n, 514 F.2d 734 (5th Cir.1975), or the admission, see, e.g., Moore v. General Motors Corp., 558 S.W.2d 720 , will be considered. [9] Implicit in our holding is that the failure to maintain the records was due, as is apparent here, ei…
discussed Cited "see, e.g." Lewis v. J.C. Penney, Inc.
E.D. Cal. · 1998 · signal: see also · confidence low
Penney owed them a legal duty to preserve and protect the integrity of the ladder for subsequent use as evidence in a personal injury lawsuit. 5 Witkin, Summary of California Law § 6 at 61 (9th ed. 1988) (“A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise.”); see also Bondu v. Gurvich, 473 So.2d 1307 (Fla.App. 3 Dist. 1984) (Florida recognized a negligent spoliation tort where hospital had a duty pursuant to administrative regulation to maintain medical records).
discussed Cited "see, e.g." Williams v. Moorer
Fla. Cty. Ct. · 1989 · signal: see also · confidence medium
In Bondu v Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), review denied, 484 So.2d 7 (Fla. 1986), the Court followed this principle and noted: “Since it is not the function of an amendment to the pleadings to cover subsequently accruing rights as ‘to cure the defect of non-existence of a cause of action when suit was begin,’ Orlando Sports Stadium, Inc. v Sentinel Star Co., 316 So.2d 607, 610 (Fla. 4th DCA 1975); see also Daytona Beach Racing and Recreational Facilities Dist. v Volusia County, 355 So.2d 175 (Fla. 1st DCA 1978), aff’d. 372 So.2d 419 (Fla. 1979), the motion for leave to ame…
Mayme BONDU, As Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant,
v.
Ruben GURVICH, M.D., Steiner & Munach, M.D., P.A., Cedars of Lebanon Hospital Care Center, Inc., a Florida Corporation, and Florida Patients Compensation Fund, Appellees. Mayme Bondu, As Personal Representative of the Estate of Dave M. Bondu, Deceased, Appellant, v. Cedars of Lebanon Hospital Care Center, Inc., a Florida Corporation, and the Florida Patients Compensation Fund, Appellees.
81-968, 81-969.
District Court of Appeal of Florida, Third District.
Jun 5, 1984.
473 So. 2d 1307
Schwartz, C.
Cited by 92 opinions  |  Published

[*1309] Horton, Perse & Ginsberg and Arnold R. Ginsberg; Colson & Hicks, Miami, for appellant.

Adams, Ward, Hunter, Angones & Adams and Robert C. Ward, Miami, for appellees.

Before SCHWARTZ, C.J.,[*] DANIEL S. PEARSON, J., and WILLIAM C. OWEN, Jr., Associate Judge.

DANIEL S. PEARSON, Judge.

In 1979, Dave Bondu was admitted to Cedars of Lebanon Hospital for study and evaluation of his coronary arteries. Several days later, after a determination that a triple bypass operation was required, Mr. Bondu went into surgery. At some point during the administration of anesthesia, Mr. Bondu suffered a cardiac arrest and despite a concerted and indisputably non-negligent effort by all present to save his life, died.

In 1980, Mayme Bondu, Dave's wife and the personal representative of his estate, sued the hospital, the Florida Patients' Compensation Fund (the Fund), and the anesthesiologists. In essence, her multicount complaint charged that the anesthesiologists' negligence caused the cardiac arrest; that the hospital was negligent in its selection and supervision of these anesthesiologists; and, of particular pertinence to this appeal, in Count VIII, that the hospital was negligent per se by failing, contrary to Section 395.202, Florida Statutes (1979), to provide Mrs. Bondu with requested medical records, thus "[frustrating] the plaintiff's ability to pursue certain proof which may be necessary to establish her case"; and in Count IX, that the hospital intentionally interfered with Mrs. Bondu's right of action[*1310] in that it "purposely and intentionally lost and/or destroyed," among others, the anesthesiology records, again "[frustrating] the plaintiff's ability to pursue certain proof which may be necessary to establish her case."

At an early stage in the litigation, the trial court dismissed with prejudice Counts VIII and IX on the ground that these counts failed to state a cause of action. Thereafter, discovery proceedings disclosed that anesthesiology records had been made, but were nowhere to be found. Predictably, there being no record of what occurred, and, it follows, no expert testimony to establish medical malpractice, a summary judgment was entered in favor of all defendants on the remaining counts of the complaint.

Mrs. Bondu then unsuccessfully moved for a rehearing "and/or" for leave to amend her complaint to add a count charging the hospital with the negligent loss of the records causing her to lose "a medical negligence lawsuit when the plaintiff could not provide expert witnesses." At or about the same time Mrs. Bondu sought the foregoing relief, she filed a separate action against the hospital and the Fund, alleging that which she alleged in the additional count which she had sought leave to add to her earlier lawsuit. Mrs. Bondu's new action was met by the hospital's motion for judgment on the pleadings asserting that the trial court's dismissal with prejudice of Counts VIII and IX in the first suit was res judicata as to the new action. The motion for judgment on the pleadings was granted.

The present appeals, consolidated here, assail only the order denying Bondu's motion for leave to amend (Case No. 81-968) and the judgment on the pleadings (Case No. 81-969).[1] The relief sought by Bondu in these appeals is identical. In each she seeks the right to maintain an action against the hospital for its negligent loss of records which caused her to lose her medical malpractice action. Whether this action is maintained in the original or subsequent lawsuit is of no moment here. Therefore, although we conclude that because Bondu's proffered amendment to her original action (a) sets forth a cause of action (b) which is different from the counts in her earlier action, the order denying her leave to amend must be affirmed,[2] we need only note this affirmance without[*1311] extended discussion, since, for the very same reason that Bondu's subsequent suit (a) sets forth a cause of action (b) which is different from the dismissed counts of her earlier action, the judgment on the pleadings must be reversed.

I.

In support of its motion for judgment on the pleadings, the hospital argued below, and argues here, that the dismissal of Counts VIII and IX of Bondu's initial complaint barred her new complaint on grounds of res judicata. It is clear, however, that a suit will be barred by res judicata (assuming that the other identity requirements of the doctrine are met) only if the cause of action previously adjudicated is identical to the cause of action later brought. See United States Gypsum Co. v. Columbia Casualty Co., 124 Fla. 633, 169 So. 532 (1936); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982); Stevens v. Len-Hal Realty, Inc., 403 So.2d 507 (Fla. 4th DCA 1981). The dismissal of Counts VIII and IX adjudicated, at most, that no cause of action lay for the hospital's failure to produce records where the alleged failure rendered the plaintiff unable to pursue certain proof which may be necessary to prove her related medical malpractice claims. The recitation in the dismissal order that "said Counts fail to state a cause of action" is presumably an adjudication that the inability to pursue certain proof which may be necessary to prove other claims is not an injury which the law recognizes, that is, that the uncertainty as to the fact of damage precludes recovery. But Mrs. Bondu's new complaint was filed after the entry of the summary judgment against her on her medical malpractice claims, when the fact of damage became certain and her cause of action ripened. The intervention of this summary judgment between the dismissal of Counts VIII and IX of the original action and the filing of the new action furnished a new basis for Mrs. Bondu's claim and makes the doctrine of res judicata inapplicable to her new action.[3] As has been stated:

"Case law abounds to the proposition that the rule of res judicata extends only to the facts and conditions as they existed at the time the judgment was rendered, or more correctly speaking, at the time the issues in the first action were made, and to the legal rights and relations of the parties as fixed by the facts determined by that judgment. When other facts or conditions intervene before the second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.... Thus the applicability of the doctrine in each case turns on the particular facts alleged in each action and the particular disposition of the allegations in the first action. Florida is in accord with this viewpoint."
Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, 210 So.2d 750, 753-54 (Fla. 4th DCA 1968), quoted with approval in Hialeah Race Course, Inc. v. Gulfstream Racing Ass'n, 245 So.2d 625 (Fla. 1971) (emphasis supplied) (citations omitted).

II.

As we are obliged to do, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980); Firestone v. Firestone, 263 So.2d 223 (Fla. 1972), we now consider whether the trial court's action in entering a judgment on the pleadings can be affirmed on a theory other than res judicata.[*1312] The only other possible theory which could justify affirmance of the present judgment is that Bondu's complaint fails to state a cause of action against the hospital. See Butts v. State Farm Automobile Insurance Co., 207 So.2d 73 (Fla. 3d DCA 1968) (failure to state a cause of action is a permissible basis for a motion for judgment on the pleadings). Cf. Wittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla. 1976). But because, as will be shown, the complaint states a cause of action, the judgment on the pleadings cannot stand.

It is well established that a cause of action for negligence consists of three essential elements which must be alleged and proved: (1) the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff; (2) a failure on the part of the defendant to perform that duty; and (3) an injury or damage to the plaintiff proximately caused by such failure. See Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983).

The crux of the plaintiff's action against the hospital is the failure to keep and maintain records, which failure rendered the plaintiff unable to prove the medical malpractice of the hospital and others.

To be sure, the tort alleged is not a familiar one. That fact, however, hardly prevents its being recognized by us. As we are reminded by Professor Prosser:

"New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none has been recognized before.... The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy." W. Prosser, Torts § 1, pp. 3-4 (4th ed. 1971).

See also Robertson v. Deak Perera (Miami), Inc., 396 So.2d 749, 751 (Fla. 3d DCA) (Schwartz, J., dissenting), rev. denied, 407 So.2d 1105 (Fla. 1981).

We need not, in Professor Prosser's words, strike out boldly to recognize the cause of action alleged by Mrs. Bondu. Courts before us have recognized the existence of causes of action for negligent failure to preserve evidence for civil litigation, Williams v. California, 34 Cal.3d 18, 192 Cal. Rptr. 233, 664 P.2d 137 (1983), and for intentional interference with prospective civil action by spoliation of evidence, Smith v. Superior Court, 151 Cal. App.3d 491, 198 Cal. Rptr. 829 (1984). If, as in Williams and Smith, an action for failure to preserve evidence or destruction of evidence lies against a party who has no connection to the lost prospective litigation, then, a fortiori, an action should lie against a defendant which, as here, stands to benefit by the fact that the prospect of successful litigation against it has disappeared along with the crucial evidence.

We recognize, of course, no such action can lie unless, in Prosser's words, it is "clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant," that is, there is a duty owed to the plaintiff by the defendant which the law recognizes. The hospital's duty to make and maintain medical records, including medical and surgical treatment notes and reports, is imposed by administrative regulations promulgated by Health and Rehabilitation Services:

"10D-28.59. Medical Records Department. The hospital shall have a medical records department with administrative responsibility for medical records. A current and complete medical record shall be maintained for every patient admitted for care in the hospital.
"(1) Filing — A system of identification and filing to insure the prompt location of a patient's medical record shall be maintained.
[*1313] "(2) Centralization of Reports — All clinical information pertaining to a patient's stay shall be centralized in the patient's record.
"(3) Content — Medical records shall contain the original of the following information: identification data; chief complaint; present illness; past history; family history; physical examination; provisional diagnosis; clinical laboratory reports; x-ray reports; consultation reports; medical and surgical treatment notes and reports; tissue reports; physician and nurse progress notes; final diagnosis; discharge summary; and autopsy findings when performed.
"(4) Indices — Records shall be indexed according to disease, operation and physician, and shall be kept up to date." Florida Administrative Code, Ch. 10D-28 (emphasis supplied).

The hospital's duty to maintain and furnish such records to a patient or the patient's personal representative upon request (implicit in which is the duty to make such records in the first instance) is found in Section 395.202, Florida Statutes (1979),[4] which provides:

"395.202 Patient records; copies; examination. —
"(1) Any licensed hospital shall, upon request, and only after discharge of the patient, furnish to any person admitted therein for care and treatment or treated thereat, or such person's guardian, curator, personal representative, or anyone designated by such person in writing, a true and correct copy of all records in the possession of the hospital, except progress notes and consultation report sections of a psychiatric nature concerning the care and treatment performed therein by the hospital, provided the person requesting such records agrees to pay a reasonable charge for the copying of said records, and further shall allow examination of the original records in its possession, or microfilms or other suitable reproductions of the records, upon such reasonable terms as shall be imposed to assure that the records shall not be damaged, destroyed, or altered.
"(2) The provisions of this act shall not apply to any hospital whose primary function is to provide psychiatric care to its patients."

Accord, Fox v. Cohen, 84 Ill. App.3d 744, 40 Ill.Dec. 477, 406 N.E.2d 178 (1980).

Since Mrs. Bondu alleges that this duty was breached by the hospital when it failed to furnish Mr. Bondu's records to her, and that this breach caused her damage in that she lost "a medical negligence lawsuit when [she] could not provide expert witnesses," her complaint states a cause of action.[5]

III.

Therefore, for the reasons stated, the order denying the motion for leave to amend appealed in Case No. 81-968 is affirmed; the judgment on the pleadings appealed in Case No. 81-969 is reversed and the cause remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part, and remanded.

On Motion for Rehearing

PER CURIAM.

Motion for Rehearing denied.

DANIEL S. PEARSON, J. and OWEN, WILLIAM C., Jr., Associate Judge, concur.

SCHWARTZ, Chief Judge (dissenting in part).

Upon reconsideration of the issue in the light of the motion for rehearing, I am[*1314] persuaded that the tort created by the majority opinion, which arises when a failure to provide required hospital records "results" in a loss of the underlying malpractice action, should not be recognized.[1] In my view, such a rule runs counter to the basic principle that there is no cognizable independent action for perjury, or for any improper conduct even by a witness, much less by a party, in an existing lawsuit. E.g., Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938). Were the rule otherwise, every case would be subject to constant retrials in the guise of independent actions. Thus, what the court characterizes at page seven of its opinion as an "a fortiori" situation is instead a complete non-sequitur.

Here, the court and, inferentially, the parties recognize that the malpractice action itself was properly dismissed. Any deficiency in the plaintiff's ability to prove his case there which was caused by an improper failure to provide records may, I think, be presented only in that action either, as in Valcin v. Public Health Trust, 473 So.2d 1297 (Fla. 3d DCA, opinion filed June 5, 1984; opinion on motions for clarification and rehearing filed this date) in the course of the litigation, or, if an adverse judgment has been entered as in the present circumstances, in a Rule 1.540 motion or independent action to set the judgment aside. See Lee v. State Farm Mutual Automobile Ins. Co., 303 So.2d 349 (Fla. 3d DCA 1974).

For these reasons, I would grant rehearing and affirm the judgment for the hospital.

[*] Did not participate in oral argument.

1 Mrs. Bondu's notice of appeal in Case No. 81-968 states that she is also appealing from the summary judgment, the denial of rehearing, and the order dismissing with prejudice Counts VIII and IX. However, her brief makes no challenge to the propriety of these actions, and we therefore consider any appeal taken therefrom to have been abandoned. See City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla. 1959) ("An assigned error will be deemed to have been abandoned when it is completely omitted from the briefs"); Coleman v. Allen, 320 So.2d 864 (Fla. 1st DCA 1975), cert. denied, 336 So.2d 105 (Fla. 1976).
2 Although a party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment, Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla. 1963); Roberts v. Braynon, 90 So.2d 623 (Fla. 1956); Plyser v. Hados, 388 So.2d 1284 (Fla. 3d DCA 1980), and a denial of leave to amend is an abuse of discretion where the proffered amendment indicates that the plaintiff can state a cause of action, Greenburg v. Johnston, 367 So.2d 229 (Fla. 2d DCA 1979); cf. Davis v. Sun First Nat'l Bank of Orlando, 408 So.2d 608 (Fla. 5th DCA 1981) (dicta), rev. denied, 413 So.2d 875 (Fla. 1982), if the proffered amendment pleads a cause of action different than that pleaded in the complaint, the rule authorizing amendments does not apply, United Tel. Co. v. Mayo, 345 So.2d 648, 655 n. 6 (Fla. 1977). Here, the cause of action against the hospital for its negligent loss of medical records causing the plaintiff to lose her medical malpractice action was not in being when Bondu filed her original action and in fact did not arise until the summary judgment adverse to her medical malpractice claims was entered. See Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983) (one essential element of a cause of action for negligence is an injury or damage to the plaintiff proximately caused by the defendant's failure to perform a duty recognized by law). Since it is not the function of an amendment to a pleading to cover subsequently accruing rights or "to cure the defect of non-existence of a cause of action when suit was begun," Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610 (Fla. 4th DCA 1975); see also Daytona Beach Racing and Recreational Facilities Dist. v. Volusia County, 355 So.2d 175 (Fla. 1st DCA 1978), aff'd, 372 So.2d 419 (Fla. 1979), the motion for leave to amend was correctly denied.
3 Even if the trial court's dismissal of Counts VIII and IX were deemed to be a determination that the hospital owed no duty to Bondu to maintain and furnish records, the issues posed by the new action would still not be identical so as to make res judicata applicable. Although the single issue of no duty would then have been decided adversely to Mrs. Bondu, at most her failure to appeal the dismissal ruling might collaterally estop her from bringing the new action. But the hospital's motion for judgment on the pleadings was not based on collateral estoppel, which, although related to res judicata, is not the same. See Seaboard Coast Line Railroad v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972); Chandler v. Chandler, 226 So.2d 697 (Fla. 4th DCA 1969).
4 The effective date of this statute was October 1, 1978, well before Mr. Bondu's death on June 6, 1979, and the filing of Mrs. Bondu's complaint on March 10, 1980.
5 Since Mrs. Bondu's complaint does not allege that the records were intentionally removed or destroyed, the hospital need not prove otherwise. See Valcin v. Public Health Trust of Dade County, 473 So.2d 1297 (Fla. 3d DCA 1984). However, since it is apparent that the hospital's failure to maintain the records was, at the least, negligent, the hospital will have the burden of proving that the treatment which such missing records would reflect was performed non-negligently. See Valcin v. Public Health Trust of Dade County, 473 So.2d 1297.
1 This is an entirely different question from the effect of the loss or destruction of records upon the burden of proof in the underlying lawsuit itself, which is involved in Valcin v. Public Health Trust, 473 So.2d 1297 (Fla. 3d DCA, opinion filed, June 5, 1984; opinion on motions for clarification and rehearing filed this date).