Carr v. Broward County

• Decision Date: 08 April 1987
• Docket Number: 85-2820 and 4-86-0209,Nos. 85-2690,s. 85-2690
• Citation: 505 So.2d 568,12 Fla. L. Weekly 992
• Parties: 12 Fla. L. Weekly 992 Ellen M. CARR and Gerow F. Carr, as parents and natural guardians of Jon Timothy Carr, a minor, and Ellen M. Carr and Gerow F. Carr, individually, Appellants, v. BROWARD COUNTY d/b/a Broward General Medical Center, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 568

505 So.2d 568

12 Fla. L. Weekly 992

Ellen M. CARR and Gerow F. Carr, as parents and natural guardians of Jon Timothy Carr, a minor, and Ellen M. Carr and Gerow F. Carr, individually, Appellants, v. BROWARD COUNTY d/b/a Broward General Medical Center, etc., et al., Appellees.

Nos. 85-2690, 85-2820 and 4-86-0209.

District Court of Appeal of Florida Fourth District.

April 8, 1987.

Julius Gonzalez and Laura S. Rotstein of Stanley M. Rosenblatt, P.A., Miami, for appellants.

Bernard & Mauro, Fort Lauderdale, and Steven R. Berger of Steven R. Berger, P.A., Miami, for appellee-North Broward Hosp. Dist., d/b/a Broward General Medical Center.

John W. Thornton and Michael E. Wargo of Thornton, Herndon & Mastrucci, Miami, for appellee-James Weaver, M.D.

Rex Conrad and Valerie Shea of Conrad, Scherer & James, Fort Lauderdale, for appellees-Lauderdale Gynecologic Associates, Robert Grenitz, M.D., and Joseph Raziano, M.D.

HERSEY, Chief Judge.

This case involves the application of a statute of repose to a cause of action for medical malpractice.

On December 20, 1975, appellant, Ellen Carr, delivered a child who was later diagnosed as suffering from severe brain damage.

On September 26, 1985, Ellen and her husband, Gerow F. Carr, filed a complaint against the hospital and the treating physicians. The complaint alleged negligent treatment and that appellants, although exercising due diligence, were "not able to discover the facts and circumstances surrounding ... prenatal and obstetrical care as well as the care rendered ... during birth ..." so that they were unable to earlier discern that negligence had occurred. It was further alleged that the appellees knew or should have known of the negligent treatment and fraudulently concealed these facts from appellants.

Motions to dismiss were granted with prejudice based upon application of section 95.11(4)(b), Florida Statutes (1975).

The applicable portion of that statute provides:

(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 diligence; 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 within this subsection shall be limited to the healthcare 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.

The two-year provision is a statute of limitations, not pertinent here. The four-year and seven-year provisions operate as statutes of repose. Both are to be measured from "the incident giving rise to the injury...." The injury occasioning this litigation, brain damage, is alleged to have resulted either from prenatal care or from treatment at the time of birth. Thus, the latest date on which the "incident" could have occurred is December 20, 1975, so that an action commenced in 1985 is well beyond the seven-year statutory period for repose.

Why, then, is there any question but that appellants' cause of action has been laid to rest by this statute? The answer is that when statutes of repose operate to impinge upon vested rights a court may be required to curtail that effect.

Before we can define the limits within which a statute of repose permissibly operates, we need to distinguish this device from statutes of limitation in two particulars.

First, a statute of limitation bars enforcement of an accrued cause of action whereas a statute of repose not only bars an accrued cause of action, but will also prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute. This effect raises certain constitutional questions which will be subsequently examined.

A second distinction may be made with reference to the event from which time is measured. A statute of limitation runs from the date the cause of action arises; that is, the date on which the final element (ordinarily, damages, but it may also be knowledge or notice) essential to the existence of a cause of action occurs. The period of time established by a statute of repose commences to run from the date of an event specified in the statute, such as delivery of goods, closing on a real estate sale or the performance of a surgical operation. At the end of the time period the cause of action ceases to exist.

This brings us to the constitutional issue. Section 21 of Article I of the Florida Constitution of 1968 (tracing back to the constitution of 1838) provides: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." The roots of the constitutional problem are incisively exposed by the following excerpt from Justice Adkin's opinion in Kluger v. White, 281 So.2d 1, 4 (Fla.1973), although in a slightly different context:

We hold, therefore, that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Statutes of repose which have been involved in cases reviewed by the supreme court involve medical malpractice, construction and design, and products liability. With certain exceptions, case law evolved under these statutes applies generally to any statute of repose.

It is helpful to keep in mind, when comparing one case with another in this area, that the temporal relationships between four factors play an important role in determining which rules apply. The operative dates are: date of the event triggering the applicable statute of repose; date of accrual of the cause of action; date of expiration of the period of repose; and, the effective date of the statute of repose.

The first case pertinent to our inquiry establishes a general rule for those cases in which the cause of action had accrued at the time the statute became effective, but the time for commencing an action had not run.

In Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978), the court decided that a statute of repose enacted subsequent to the accrual of a cause of action did not impermissibly deny access to the courts if the statute as applied to a particular plaintiff's cause of action provided for a reasonable time within which an action could be brought.

In Overland Const. Co. v. Sirmons, 369 So.2d 572 (Fla.1979), the court held, as a somewhat necessary corollary to the Bauld rule, that, if application of the statute barred a recognized right before the cause of action ripened (thus allowing NO time within which to file an action), this resulted in an unconstitutional denial of access to the courts. The statute in that case imposed an outside limit of twelve years after the completion of improvements to real property to bring a suit for negligence against the engineer, architect or contractor. Appellee, Sirmons, was injured in a building in the course of his employment more than twelve years after Overland completed its construction. The trial court ruled the statute unconstitutional and permitted the suit against the contractor, Overland, to proceed despite the bar of the statute of repose. Approving this disposition the supreme court held that failure of the legislature either to provide a reasonable alternative in lieu of the right thus abolished, or to show an overpowering public necessity for abolishment and that no other method of meeting that public necessity was available, impermissibly denied access to the courts in violation of the constitution.

In Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980), plaintiff was allegedly injured because of defective and negligent manufacture of the machine which caused her injury. The applicable statute barring actions for product liability after twelve years from the date of delivery of the finished product to the original purchaser became effective on January 1, 1975. Delivery of the product took place in June of 1961 and plaintiff's alleged injury occurred on April 24, 1973. However, the statute contained a savings clause providing that an action that would have been barred by this statute on its effective date could be commenced at any time until January 1, 1976. Since the savings clause provided a reasonable time within which to bring suit, the statute did not deny access to the courts in an impermissible manner. Appellant lost, nevertheless, having filed her complaint beyond the savings period. This statute of repose has since been substantially altered by chapter 86-272, Laws of Florida, effective July 1, 1986.

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