Carr v. Broward County, 70545

• Court: United States State Supreme Court of Florida
• Writing for the Court: OVERTON; EHRLICH; KOGAN; KOGAN
• Citation: 14 Fla. L. Weekly 110,541 So.2d 92
• Parties: 14 Fla. L. Weekly 110 Ellen M. CARR, et al., Petitioners, v. BROWARD COUNTY, etc., et al., Respondents.
• Docket Number: No. 70545,70545
• Decision Date: 16 March 1989

Page 92

541 So.2d 92 14 Fla. L. Weekly 110 Ellen M. CARR, et al., Petitioners,
v.
BROWARD COUNTY, etc., et al., Respondents. No. 70545. Supreme Court of Florida. March 16, 1989.
Rehearing Denied May 1, 1989.

Page 93

Laura S. Rotstein of Stanley M. Rosenblatt, P.A., Miami, for petitioners.

Ellen Mills Gibbs, Bernard & Mauro, Fort Lauderdale, Steven R. Berger of Steven R. Berger, P.A., Robert J. Burke of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Miami, and Rex Conrad and Valerie Shea of Conrad, Scherer & James, Fort Lauderdale, for respondents.

Joel S. Cronin of Cone, Wagner, Nugent, Johnson, Roth & Romano, P.A., West Palm Beach, amicua curiae for The Academy of Florida Trial Lawyers.

OVERTON, Justice.

This cause is before the Court on petition for review of the Fourth District Court of Appeal's decision in Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987). The Fourth District found Carr's medical malpractice action, filed more than nine years after the alleged incident causing brain damage to her newborn child, was barred by the statute of repose provisions contained in section 95.11(4)(b), Florida Statutes (1975). In so holding, the district court acknowledged conflict with Phelan v. Hanft, 471 So.2d 648 (Fla. 3d DCA 1985), appeal dismissed, 488 So.2d 531 (Fla.1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the instant decision and disapprove Phelan.

The facts reflect that in December, 1975, petitioner Ellen Carr gave birth to a baby who was diagnosed as suffering from severe brain damage. Almost ten years later, in September, 1985, Carr and her husband filed a complaint against the hospital and the treating physicians alleging negligent treatment and that the Carrs, despite their due diligence, were unable to discover the facts and circumstances surrounding prenatal and obstetrical care and the care rendered during birth. The trial court granted the respondents' motion to dismiss, applying section 95.11(4)(b). Section 95.11(4)(b), Florida Statutes (1975), reads in pertinent part:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due dilegence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An "action for medical malpractice" is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions

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within this subsection shall be limited to the health-care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

This statutory section prescribes (1) a statute of limitations of two years; (2) a statute of repose of four years absent fraud or intentional misconduct; and (3) a statute of repose of seven years where there is an allegation that fraud, concealment, or intentional misrepresentation of fact prevented discovery of the negligent conduct.

On appeal, the Fourth District determined that the brain damage injury to the Carr infant was a completed fact at the time of birth and the cause of action was permanently barred after September, 1982, by the seven-year statute of repose provision contained in section 95.11(4)(b). The court applied Kluger v. White, 281 So.2d 1 (Fla.1973), determining the legislature had found overpowering public necessity for the legislation and the Carrs were not unconstitutionally denied access to courts guaranteed by article I, section 21, Florida Constitution. The court, in so holding...