Moore v. Winter Haven Hosp., 90-00596
| Decision Date | 12 April 1991 |
| Docket Number | No. 90-00596,90-00596 |
| Citation | 16 Fla. L. Weekly 1018,579 So.2d 188 |
| Parties | 16 Fla. L. Weekly 1018 Patricia Boss MOORE, Individually and as Next Friend of Michael Moore, a Minor, Appellant, v. WINTER HAVEN HOSPITAL, Allan Erde, M.D., P.A., R.K. "Rocky" Wells, M.D., and R.K. "Rocky" Wells, M.D., P.A., Appellees. |
| Court | Florida District Court of Appeals |
John W. Frost, II, and David C. Dale of Frost & Dale, P.A., Bartow, and Jack Beam of Beam, Raymond & Holmes, Denver, Colo., and Barth H. Goldberg of Goldberg & Goldberg, Chicago, Ill., for appellant.
Janet W. Adams of Adams, Hill, Reis, Adams & Hall, Orlando, for appellee Winter Haven Hosp.
Patricia Boss Moore appeals from a final summary judgment in which the trial court held that her action for medical negligence was time barred by the four-year statute of repose contained in section 95.11(4)(b), Florida Statutes (1983). 1 We reverse.
Moore gave birth to a son, Michael, on August 13, 1983. The child had a misshapen head and suffered seizures on the day of his birth. Twelve days later, she was advised by Michael's treating neurologist that he suffered from encephalopathy (a disease of the brain) and would be a slow learner. Moore alleges that on December 20, 1986, she first discovered that her son's brain condition could be the result of medical negligence. On March 27, 1987, she served a notice of intent to initiate medical malpractice litigation on Winter Haven Hospital. On June 18, 1987, she applied for, and received, the automatic ninety-day extension of the statute of limitations provided for in section 768.495(2), Florida Statutes (1987). 2 On September 21, 1987, Moore filed a medical malpractice action against the hospital.
The hospital moved for summary judgment asserting that Moore's action was "barred by the applicable statute of limitations and/or statute of repose." The trial court held the action barred by the four-year statute of repose and granted final summary judgment in favor of the hospital.
Section 768.57, Florida Statutes (1987), requires, as a condition precedent to suit, that the claimant serve upon each potential defendant a notice of intent to litigate. An action cannot be instituted for ninety days after such service, during which period the statute of limitations is tolled. 3 The statute makes no specific reference to a statute of repose. It is the position of the hospital that the notice of intent to litigate triggers the tolling of the two-year medical malpractice limitation period, but is inoperative as to the four-year statute of repose contained in the same subsection. It reasons that the omission of the words "the statute of repose is tolled" demonstrates legislative intent to toll only the two-year limitation period.
We do not agree. It is the purpose of the ninety-day presuit period to permit the parties to pursue statutorily prescribed procedures which may lead to an amicable resolution of the claim. Castro v. Davis, 527 So.2d 250 (Fla. 2d DCA 1988). Although we recognize distinctions in the application of a statute of repose as opposed to a general statute of limitations, 4 a statute of repose is a form of a statute of limitations and the terms are often used interchangeably. See Webster's Third New International Dictionary 2230 (1986). The "statute of repose" is subsumed in the general term "statute of limitations" of section 95.11(4) and is tolled by the service of the notice of intent to litigate. To hold otherwise would frustrate the legislative intent of section 768.57 in its entirety. Moore's action was therefore timely filed.
Although the trial court did not rule on it, the parties have attempted to argue the question of whether Moore's action is time barred by the two-year statute of limitations based on the facts of the case. The issue not being properly before the court, we decline to comment on it.
Reversed and remanded with instructions to reinstate Moore's amended complaint.
1 95.11 Limitations other than for the recovery of real property.--Actions other than for recovery...
To continue reading
Request your trial
-
Boyle v. Samotin, Case No. 2D18-2932
... ... Cf. Hillsborough Cty. Hosp. Auth. v.Coffaro , 829 So. 2d 862, 866 (Fla. 2002) ... of the court's prior construction of the statute); Moore v. WinterHaven Hosp. , 579 So. 2d 188, 190 (Fla. 2d DCA ... ...
-
SABAL CHASE HOMEOWNERS v. DISNEY WORLD
...the term "statute of limitations" includes statutes of repose; "the terms are often used interchangeably." Moore v. Winter Haven Hospital, 579 So.2d 188, 190 (Fla. 2d DCA 1991) (citation omitted). In a technical sense, the law draws a distinction between a statute of limitations and a statu......
-
Wood v. Fraser
...of repose tolled the statute. In making his argument, the appellee acknowledged the opinion of this court in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA), review denied, 589 So.2d 294 (Fla.1991), in which we clearly held that the four-year statute of repose in section 95.11(4......
-
Musculoskeletal Institute v. Parham
...as required by Florida Statute § 766.106, cannot be sustained. The Court rejects the applicability of Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA 1991) to the undisputed facts of this Parham, 704 So.2d at 624-25. On appeal, the district court first noted that the trial court ......
-
A Not-So-Little Problem with Precedent: Intra-district Conflict in Florida District Courts of Appeal.
...argued that a 1995 decision, Arango v. Orr, 656 So. 2d 248 (Fla. 2d DCA 1995), overruled a 1991 decision, Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d DCA 1991). The trial court agreed and granted the doctor's motion for summary The Second District reversed, holding that "the tri......
-
Florida medical malpractice and the statute of limitations: an overview of select statutory provisions and case law governing medical malpractice litigation.
...745 So. 2d 946 (Fla. 1999). (31) University of Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991). (32) Moore v. Winter Haven Hospital, 579 So. 2d 188 (Fla. 2d D.C.A. (33) Pergrem v. Horan, 669 So. 2d 1150 (5th D.C.A. 1996). (34) Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000) (abrogating Pergrem in......