Dade County v. Ferro, No. 57282

CourtUnited States State Supreme Court of Florida
Writing for the CourtSUNDBERG; ENGLAND
Citation384 So.2d 1283
Decision Date12 June 1980
Docket NumberNo. 57282
PartiesDADE COUNTY, a political subdivision of the State of Florida, d/b/a Jackson Memorial Hospital, Petitioner, v. Isabel FERRO and Jorge Ferro, Respondents.

Page 1283

384 So.2d 1283
DADE COUNTY, a political subdivision of the State of Florida, d/b/a Jackson Memorial Hospital, Petitioner,
v.
Isabel FERRO and Jorge Ferro, Respondents.
No. 57282.
Supreme Court of Florida.
June 12, 1980.

Michael J. Murphy, of Fowler, White, Burnett, Hurley, Banick & Strickroot, and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.

Robert L. Parks and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, for respondents.

Page 1284

SUNDBERG, Justice.

Respondent Isabel Ferro, joined by her husband, Jorge Ferro, brought this medical malpractice suit seeking damages against Dade County d/b/a Jackson Memorial Hospital (Hospital) for alleged negligent radiation therapy treatments which were administered to Mrs. Ferro between December, 1970, and May, 1971. The treatment resulted in the permanent loss of the use of both of respondent's arms. Respondent discovered the alleged malpractice in September, 1975, and filed a medical mediation claim on April 27, 1977, within two years after discovery of the alleged malpractice but more than four years after the allegedly negligent treatment occurred.

The Hospital moved for a judgment on the pleadings, or in the alternative, a summary judgment, based on the affirmative defense of the statute of limitations contained in section 95.11(4)(b), Florida Statutes (1975), which requires that an action for medical malpractice be brought within four years from the time the incident giving rise to the action occurred. The trial court held that section 95.11(4)(b) (effective May 20, 1975) applied to the facts in this case but denied Hospital's motions on the ground that the statute unconstitutionally violates respondent's right of access to the courts for redress of any injury as guaranteed by article I, section 21, Florida Constitution. The trial court specifically found that the legislative findings contained in the preamble to The Medical Malpractice Reform Act of 1975 were insufficient to demonstrate an "overpowering public necessity" which would justify abolition of respondents' common-law rights. Petitioner, by certiorari, seeks review of the interlocutory order on the basis that the trial court passed upon the validity of the state statute and upon final judgment such action would be directly appealable to this Court. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

There are two issues presented by this petition for certiorari. First, whether the four-year absolute bar contained in section 95.11(4)(b), Florida Statutes (1975), is applicable to the facts of this case as found by the trial judge. Second, if applicable to this case, whether the four-year absolute bar to medical malpractice claims contained in section 95.11(4)(b) unconstitutionally denies a claimant access to the courts under article I, section 21 of the Florida Constitution. Because we resolve the first issue adversely to the ruling of the trial court, it is unnecessary to reach the second issue presented. Singletary v. State, 322 So.2d 551 (Fla.1975); Re Estate of Sale, 227 So.2d 199 (Fla.1969).

To assist in resolution of the question presented it is beneficial to review the history of chapter 95, Florida Statutes, as it pertains to the facts in this case. On the inclusive dates during which the alleged malpractice occurred, the applicable statute of limitations was section 95.11(4), Florida Statutes, which established a four-year limitation period for actions not otherwise specifically provided for in chapter 95. See Foley v. Morris, 339 So.2d 215 (Fla.1976). The limitation period in medical malpractice actions, however, was measured from the date of discovery of or opportunity to discover the injury, through use of reasonable care. See Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

By chapter 71-254, Laws of Florida, effective July 1, 1972, section 95.11(6), Florida Statutes, was amended to impose a two-year statute of limitations for medical malpractice claims. It was provided therein that a "cause of action . . . (for medical malpractice is) not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury." (Emphasis supplied.) Apart from shortening the limitation period, this amendment essentially codified existing case law respecting the date upon which medical malpractice claims accrued. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Vilord v. Jenkins, 226 So.2d 245 (Fla. 2d DCA 1969). See Nardone v. Reynolds, supra.

Effective January 1, 1975, section 95.11(6) was amended and redesignated section 95.

Page 1285

11(4), Florida Statutes, by chapter 74-382, Laws of Florida. The two-year limitation period for medical malpractice actions was brought forward, but the "accrual" language of the former section was modified to read that...

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13 practice notes
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., No. 83-854
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 1984
    ...even assuming, arguendo, that the five-year statute of limitations provided in Section 812.035(10) applied, but see Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); McGlynn v. Rosen, 387 So.2d 468 (Fla. 2d DCA 1980), rev. denied, 392 So.2d 1376 (Fla.1981), the Trust Company's action would h......
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...limitations period with no statute of repose for any actions not specifically provided for in Chapter 95. 5 See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.......
  • Florida Medical Center, Inc. v. Von Stetina By and Through Von Stetina, Nos. 82-1332
    • United States
    • Florida District Court of Appeals
    • August 10, 1983
    ...July of 1982. Statutes must not be given retroactive application unless an intent to do so is clearly expressed, Dade County v. Ferro, 384 So.2d 1283 (Fla.1980) or unless the statute is merely procedural, remedial or affects the measure of damages. Heilmann v. State, 310 So.2d 376 (Fla. 2d ......
  • Durring v. Reynolds, Smith & Hills, No. AX-334
    • United States
    • Court of Appeal of Florida (US)
    • June 18, 1985
    ...in this case are presumed not to be retroactive absent a clear expression of legislative intent to the contrary. Dade County v. Ferro, 384 So.2d 1283 (Fla.1980). 7 In Foley v. Page 608 Morris, 339 So.2d 215, the court stated the rule to be applied in determining this question as follows: Ge......
  • Request a trial to view additional results
13 cases
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., No. 83-854
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 1984
    ...even assuming, arguendo, that the five-year statute of limitations provided in Section 812.035(10) applied, but see Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); McGlynn v. Rosen, 387 So.2d 468 (Fla. 2d DCA 1980), rev. denied, 392 So.2d 1376 (Fla.1981), the Trust Company's action would h......
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...limitations period with no statute of repose for any actions not specifically provided for in Chapter 95. 5 See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.......
  • Florida Medical Center, Inc. v. Von Stetina By and Through Von Stetina, Nos. 82-1332
    • United States
    • Florida District Court of Appeals
    • August 10, 1983
    ...July of 1982. Statutes must not be given retroactive application unless an intent to do so is clearly expressed, Dade County v. Ferro, 384 So.2d 1283 (Fla.1980) or unless the statute is merely procedural, remedial or affects the measure of damages. Heilmann v. State, 310 So.2d 376 (Fla. 2d ......
  • Durring v. Reynolds, Smith & Hills, No. AX-334
    • United States
    • Court of Appeal of Florida (US)
    • June 18, 1985
    ...in this case are presumed not to be retroactive absent a clear expression of legislative intent to the contrary. Dade County v. Ferro, 384 So.2d 1283 (Fla.1980). 7 In Foley v. Page 608 Morris, 339 So.2d 215, the court stated the rule to be applied in determining this question as follows: Ge......
  • Request a trial to view additional results

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