Doe v. Shands Teaching Hosp. and Clinics, Inc.

• Decision Date: 19 February 1993
• Docket Number: No. 91-3099,91-3099
• Citation: 614 So.2d 1170
• Parties: 18 Fla. L. Week. D585 John DOE, and his wife, Jane Doe, individually, and as parents, next friends, and natural guardians of their child, Mary Doe, a minor, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., a Florida not-for-profit corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1170

614 So.2d 1170

18 Fla. L. Week. D585

John DOE, and his wife, Jane Doe, individually, and as

parents, next friends, and natural guardians of

their child, Mary Doe, a minor, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., a Florida

not-for-profit corporation, Appellee.

No. 91-3099.

District Court of Appeal of Florida,

First District.

Feb. 19, 1993.

Rehearing Denied March 31, 1993.

Loren E. Levy, Tallahassee, Carol Falvey of Cone, Green & Kaster, Ocala, for appellant.

Francis E. Pierce, III, of Gurney & Handley, Orlando, for appellee.

KAHN, Judge.

In this medical malpractice action we must reject appellant's contention that section 95.11(4)(b), Florida Statutes (1983), the medical malpractice statute of repose, is an unconstitutional denial of access to courts because appellants neither knew nor could have reasonably known of an injury before the expiration of the repose period. Kush v. Lloyd, 616 So.2d 415 (Fla.1992); Whigham v. Shands Teaching Hospital & Clinics, Inc., 613 So.2d 110 (Fla. 1st DCA 1993); Padgett v. Shands Teaching Hospital & Clinics, Inc., 616 So.2d 467 (Fla. 1st DCA 1993).

In addition to the matters discussed by the supreme court in Kush, supra, we have closely considered the applicability of the case of Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). In Diamond, the supreme court held unconstitutional the product liability statute of repose as applied to facts showing that from July 27, 1955 until April 1, 1956, Nina Diamond, while yet unborn, received a drug known as diethylstilbestrol (DES) by way of administration orally to her pregnant mother. The Diamonds brought a product liability action in April 1977, alleging that they first learned in May 1976 that teenage girls whose mothers had taken DES during pregnancy were developing cancerous or precancerous conditions. The court concluded that the product liability statute of repose denied access to courts because it barred the Diamonds' cause of action "before it ever existed." Id. at 672. The supreme court did not expressly confront Diamond in its Kush decision.

The statute of repose which would have barred the cause of action in Diamond, but for its unconstitutionality, became effective on January 1, 1975. Ch. 74-382, Laws of Fla. Mrs. Diamond's ingestion of DES took place almost two decades prior to enactment of the statute, and caused cancer in her child only after the child reached her teenage years. Thus, in Diamond, it can be said that the "new" statute of repose operated to bar the existing cause of action. See Shields v. Buchholz, 515 So.2d 1379, 1283 (Fla. 4th DCA 1987) (recognizing a possible exception where the cause of action accrued prior to the adoption of the statute of repose), rev. dismissed, 523 So.2d 578 (Fla.1988). In the present case, no new statutory enactment intervened to abolish the Does' existing cause of action. Rather, the cause of action never accrued. Kush, supra. ¹ The decision by the court in Kush not to address Diamond would indicate that Diamond might be limited to its facts. See also, Pullum v. Cincinnati, Inc., 476 So.2d 657, 659, n* (Fla.1985); Times Publishing Co. v. W.R. Grace & Co.--Conn., 552 So.2d 314, 315 (Fla. 2d DCA 1989), rev. denied, 563 So.2d 635 (Fla.1990).

We perceive yet another reason why the Diamond decision, in a product liability context, should not be applied to the facts at bar. In Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980), the supreme court decided that the statute of repose was unconstitutional as applied to an injury which occurred within twelve years after delivery of a product. See Overland Constr. Co. v. Sirmons, 369 So.2d 572 (Fla.1979) (holding unconstitutional as applied in section 95.11(3)(c), Florida Statutes (1975)). In Pullum v. Cincinnati, Inc., supra, the court overruled Battilla and held that the legislature "reasonably decided that perpetual liability places an undue burden on manufacturers, and it decided that twelve years from the date of sale is a reasonable time for exposure to liability for manufacturing of a product." Id. at 659. In resolving Pullum, the supreme court, of necessity, found that the statute of repose denies neither equal protection nor access to courts. Within seven months of the denial of rehearing in Pullum, the legislature repealed the product liability statute of repose, effective July 1, 1986. Ch. 86-272, Laws of Fla. The legislature chose not to repeal, or even address, the medical malpractice statute of repose at that time, or at any time subsequent.

Even before the Kush decision, our supreme court, in reviewing questions arising under the statute of repose, carefully selected language which we are not at liberty to ignore.

In University of Miami v. Bogorff, 583 So.2d 1000, 1003-1004 (Fla.1991), the court ruled that the statute here in question did not violate article I, section 21, of the Florida Constitution, holding:

[A] statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or completion of improvements, rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued.

* * * * * *

In Carr v. Broward County, 541 So.2d 92 (Fla.1989), we held that the statutory repose period for medical malpractice actions does not violate the constitutional mandate of access to courts, even when applied to a cause of action which did not accrue until after the period had expired.

In Public Health Trust of Dade County v. Menendez, 584 So.2d 567, 568 (Fla.1991), the supreme court stated that the repose period "bars any and all claims brought more than four years after the actual incident, even for acts of negligence that could not reasonably have been discovered within this period of time."

The court in Kush clearly acknowledged that the result of the majority view in that case would be to "eliminate a cause of action before it has accrued." 616 So.2d at 421. Thus, the majority expressly rejected Chief Justice Barkett's view in dissent that access to courts would be violated by "cutting off a plaintiff's right to seek legal redress before the cause of action ever existed." 616 So.2d at 425.

The Kush majority also has selected language which appears to us to be at odds with the view taken by Judge Ervin's well considered dissent. According to the supreme court, "once we determined that the statute was constitutional, our review of its merits was complete. This court is not authorized to second guess the legislature's judgment." 616 So.2d at 422. This language appears immediately after the court has stated that a statute of repose eliminates a cause of action before it has accrued. We take this as a clear signal from the supreme court that the facts of an individual case will not be considered once it is demonstrated that the incident of malpractice occurred more than four years prior to the initiation of a lawsuit.

The order of dismissal with prejudice is AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, J., dissents with written opinion.

ERVIN, Judge, dissenting.

I cannot agree with the majority's decision that an action in medical malpractice, filed after the repose period had ended, and based upon a complaint which essentially alleges that plaintiffs did not know or with reason could not have known of the fact of injury until after the expiration of such period, is barred by the provisions of the repose statute, Section 95.11(4)(b), Florida Statutes (1983). I consider that application of the statute of repose, under the circumstances presented here, offends the access to courts provision of the Florida Constitution. In my judgment, this case is indistinguishable from Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981), in which our supreme court held the product liability statute of repose unconstitutional, as applied to facts showing that plaintiffs were not placed on notice of the injury until after the term of repose had expired, in that the statute was in violation of the constitution's guaranty of access to courts.

No opinion by the Florida Supreme Court has ever explicitly receded from Diamond, and the supreme court cases relied upon by the majority and in other recent opinions of this court, e.g., Whigham v. Shands Teaching Hospital & Clinics, Inc., 613 So.2d 110 (Fla. 1st DCA 1993); Padgett v. Shands Teaching Hospital & Clinics, Inc., 616 So.2d 467 (Fla. 1st DCA 1993), involved plaintiffs who were aware of the injury during the running of the repose period. See also Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (plaintiffs were on notice of their child's injury, i.e., a genetic abnormality, shortly following the child's birth); University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991) (medical malpractice action was barred, because plaintiffs were aware within the repose period of the severe injury their son suffered). Thus, no subsequent opinion of the Florida Supreme Court upholding the constitutionality of the medical malpractice statute of repose as applied involved facts similar to those as alleged in the present case. Consequently, the panel's reliance upon such opinions, in my judgment, is misplaced.

The majority attempts to distinguish the facts in Diamond from those at bar by pointing out that in Diamond the product liability statute of repose did not take effect until long after the incident giving rise to the action, whereas in the present case the particular statute of repose was already in effect before the alleged incident of malpractice occurred. Whether or not a statute of repose is in place under such circumstances is immaterial, as I will endeavor to explain in more detail infra. Rather, the pertinent inquiry, which was set forth in Kluger v. White, 281 So.2d 1 (Fla.1973), is whether a general right of action for redress of a particular injury existed as of the date the access to courts...