Hankey v. Yarian

• Decision Date: 16 March 2000
• Docket Number: No. SC 94384.,SC 94384.
• Citation: 755 So.2d 93
• Parties: Patricia Ann HANKEY, et al., Petitioners, v. Susan YARIAN, M.D., et al., Respondents.
• Court: Florida Supreme Court

755 So.2d 93

Patricia Ann HANKEY, et al., Petitioners, v. Susan YARIAN, M.D., et al., Respondents.

No. SC 94384.

Supreme Court of Florida.

March 16, 2000.

Charles Daniel Sikes and Thomas F. Nordlie, Starke, Florida, for Petitioners.

H. Joseph McGuire and M. Kathleen Roddenberry of Smith, Schoder & Roddenberry, P.A., Daytona Beach, Florida; Kurt M. Spengler and Michael R. D'Lugo of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Orlando, Florida; Lee W. Marcus, Terese M. Latham and Martin B. Unger of Unger, Swartwood, Indest & Acree, P.A., Orlando, Florida, for Respondents.

ANSTEAD, J.

We have for review Hankey v. Yarian, 719 So.2d 987 (Fla. 5th DCA 1998) based on certified direct conflict with the decision in Rothschild v. NME Hospitals, Inc., 707 So.2d 952 (Fla. 4th DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we quash Hankey and approve Rothschild.

At issue is the calculation of the statutory time limitations for filing a medical malpractice action under chapter 766 of the Florida Statutes. Specifically, the question is whether the ninety-day "tolling" period under section 766.106(4), Florida Statutes, plus any other extension agreed to by the parties as provided for under that subsection, suspends the running of the two-year statutory limitation period for filing suit. In Hankey, the Fifth District held that the statutory limitations period was not suspended during the tolling period provided for in section 766.106(4). In Rothschild, the Fourth District held that the running of the limitations period was suspended. We conclude that the tolling period provided by section 766.106(4) does interrupt and suspend the running of the limitations period. Therefore, we approve Rothschild and disapprove Hankey.

The trial court dismissed the complaint of Patricia Ann and Donald Hankey, finding it was not timely filed, and the district court affirmed. See Hankey, 719 So.2d at 988. The district court in Hankey relied on Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996), wherein three years after our decision in Tanner v. Hartog, 618 So.2d 177 (Fla.1993), the Fifth District concluded that under section 766.106(4), "if the notice of intent is mailed well in advance of the end of the statute of limitations period, so that the ninety days and sixty days fall within it, the claimant must file suit before the [original two-year] statute of limitations runs." Id. at 1151. We find error in this interpretation of Tanner by Pergrem and Hankey. Further, applying the method of calculation set out herein to the facts of this case, we find that the Hankeys' complaint was timely filed and therefore quash the ruling below.

MEDICAL MALPRACTICE STATUTORY SCHEME

We begin with a review of the medical malpractice statutory scheme and its purpose, both of which directly affect the resolution of this case. It appears that the Legislature adopted the presuit procedures of chapter 766 based upon a concern about the perceived increase in the amount of medical malpractice claims paid and a perceived corresponding increase in malpractice liability insurance premiums. See § 766.201(1)(b), Fla. Stat. (1997). In section 766.201(2), the Legislature expressly states it was their intent "to provide a plan for prompt resolution of medical negligence claims." Courts have often characterized the legislative intent of the medical malpractice statutory scheme as promoting the "settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding." Cohen v. Dauphinee, 739 So.2d 68, 71 (Fla.1999) (quoting Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991); see also Patry v. Capps, 633 So.2d 9, 11-12 (Fla.1994)). A key aspect of this statutory scheme is the promotion of settlement options and negotiations between the parties out of court. The provisions for tolling and extending the limitations period are part of this scheme.

LIMITATIONS SCHEME

Pursuant to section 95.11(4)(b), Florida Statutes (1997), an action for medical malpractice must be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered with the exercise of due diligence. However, before a claimant can file a medical malpractice suit, chapter 766 prescribes a number of requirements and provisions which seek to enhance the prospect of a settlement, and which affect the running of the limitations period.

First, a claimant must conduct a reasonable investigation to determine if there are grounds for a good faith belief that there was negligence in his care or treatment. See § 766.104(1), Fla. Stat. (1997). After the completion of this presuit investigation, and during the two-year period provided for in section 95.11(4)(b), the claimant must serve a notice of intent to initiate litigation to each prospective defendant. See § 766.106(2), Fla. Stat. (1997). Importantly, as it relates to the limitations issue before us, no suit may be filed for a period of ninety days after this notice of intent is mailed to any prospective defendant.¹ See § 766.106(3)(a), Fla. Stat. (1997). In this regard, section 766.106(4) provides:

[D]uring the 90-day period, the statute of limitation is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.²

Finally, by filing a petition to the clerk of the circuit court, a claimant is entitled to an automatic ninety-day extension to the statute of limitations. See § 766.104(2), Fla. Stat. (1997). All of these provisions impact the running of the limitations period, and appear designed to facilitate negotiations between the parties.

CALCULATING THE TIME LIMITATIONS

Initially, the claimant, Patricia Hankey, maintains that the use of the word "tolled" in section 766.106(4) means that the two-year statute of limitations is suspended during the ninety-day period and during any other agreed extension. She maintains that an alternative reading of that statutory provision will effectively and substantially reduce the statutory limitations period in medical malpractice cases. On the other hand, the respondents urge us to find that the statute only has the limited application discussed in Pergrem; or, alternatively, that the word "toll" means only "to bar."³ Therefore, the respondents maintain that the statute simply provides that a claimant is barred from filing suit during this period, but the time that passes during this time period is still to be counted against the two years allowed for bringing suit.

PLAIN MEANING

It has long been a rule of statutory construction that statutes must be given their plain and obvious meaning and courts should assume that the legislature knew the plain and ordinary meaning of words when it chose to include them in a statute. See Aetna Cas. & Surety Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992); Thayer v. State, 335 So.2d 815, 817 (Fla.1976); Sheffield v. Davis, 562 So.2d 384, 386 (Fla. 2d DCA 1990). In Sheffield, as was the case with the Fourth District in Rothschild, the Second District applied the plain meaning of the word "toll" to conclude that the word "tolled" in section 768.57(4), Florida Statutes (1987), the predecessor of section 766.106(4), should be interpreted to mean a "suspension" of the statute of limitations.⁴

OTHER STATUTES

Another way of determining the Legislature's intent in using the word "tolled" in section 766.106(4), is by examining other uses of the word in similar contexts. The Second District also applied this rule in Sheffield. See Sheffield, 562 So.2d at 386. For example, section 95.051, Florida Statutes (1997), provides generally for the tolling of statutory limitations periods:

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

(a) Absence from the state of the person to be sued.

(b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.

(c) Concealment in the state of the person to be sued so that process cannot be served on him or her.

(d) The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

(e) Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.

(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

(g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.

(h) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

The "tolling" language in section 90.051 has been routinely and consistently interpreted as suspending the running of the statute of limitations time clock until the identified condition is settled. See Abbott v. Kiser, 654 So.2d 640 (Fla. 4th DCA 1995) (finding wife's suit timely filed because husband's absence from country tolled statute of limitations period applicable to wife's...