Musculoskeletal Institute v. Parham

• Citation: 745 So.2d 946
• Decision Date: 11 March 1999
• Docket Number: No. 451., No. 92, No. 966, No. 382, No. 91
• Parties: MUSCULOSKELETAL INSTITUTE CHARTERED, d/b/a/ Florida Orthopaedic Institute, Chester E. Sutterlin, III, M.D., Chester E. Sutterlin, III, M.D., P.A., and Gene A. Balis, M.D., Petitioners, v. James S. PARHAM, Respondent.
• Court: United States State Supreme Court of Florida

745 So.2d 946

MUSCULOSKELETAL INSTITUTE CHARTERED, d/b/a/ Florida Orthopaedic Institute, Chester E. Sutterlin, III, M.D., Chester E. Sutterlin, III, M.D., P.A., and Gene A. Balis, M.D., Petitioners, v. James S. PARHAM, Respondent.

Nos. 91,966, 92,,451.

Supreme Court of Florida.

March 11, 1999.

Rehearing Denied April 30, 1999.

Thomas M. Hoeler and Glenn M. Burton of Shear, Newman, Hahn & Rosenkranz, P.A., Tampa, Florida, for petitioner Musculoskeletal Institute Chartered, d/b/a Florida Orthopaedic Institute.

Martin B. Unger and Brian D. Stokes of Unger, Swartwood, Latham & Indest, Orlando, Florida, for petitioner Chester E. Sutterlin, III, M.D.

Clifford L. Somers of Somers & Associates, Tampa, Florida, for petitioner Gene A. Balis, M.D.

William J. Terry, Tampa, Florida, for Respondent.

PER CURIAM.

We have for review the decision in Parham v. Balis, 704 So.2d 623 (Fla. 2d DCA 1997). We accepted jurisdiction to answer the following question certified to be of great public importance:

DO THE EXTENSIONS OF THE STATUTE OF LIMITATIONS ALLOWED BY SECTIONS 766.104(2) AND 766.106(4), FLORIDA STATUTES (1989), ALSO EXTEND THE STATUTE OF REPOSE CONTAINED IN SECTION 95.11(4)( [b]), FLORIDA STATUTES (1989)?

Id. at 625. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

WHETHER A MEDICAL MALPRACTICE ACTION IS "COMMENCED" WITHIN THE MEANING OF THE STATUTE OF REPOSE IN SECTION 95.11(4)(b), FLORIDA STATUTES (1989), WHEN THE PLAINTIFF PETITIONS FOR AN AUTOMATIC 90-DAY EXTENSION OF THE STATUTE OF LIMITATIONS UNDER SECTION 766.104(2), FLORIDA STATUTES (1989), IN ORDER TO

CONDUCT THE "REASONABLE INVESTIGATION" REQUIRED BY SECTION 766.104(1), FLORIDA STATUTES (1989), OR SERVES A NOTICE OF INTENT TO INITIATE LITIGATION PURSUANT TO SECTION 766.106(4), FLORIDA STATUTES (1989)?

For the reasons expressed below, we answer the rephrased certified question in the affirmative and approve the decision on review under the reasoning contained herein.

MATERIAL FACTS AND PROCEEDINGS BELOW

In the case below, the Second District considered whether the extensions of the medical malpractice statute of limitations provided for in sections 766.104(2) and 766.106(4), Florida Statutes (1989), likewise extend the four-year medical malpractice statute of repose residing in section 95.11(4)(b), Florida Statutes (1989). The following facts are taken from the court's opinion:

As a result of injuries sustained in a fall, Parham underwent a two-part surgical procedure which included a neck fusion using a pedicle screw. The procedures were performed by appellees Gene A. Balis, M.D., and Chester E. Sutterlin, III, M.D., who were employed by, or associated with, appellee Musculoskeletal Institute, Chartered, at the time of the surgery.

The surgical procedures took place on December 18, 1990, and January 29, 1991. Parham alleged that he discovered the negligence on December 17, 1993, when he was alerted to the hazards of pedicle screws by a television news documentary. On December 16, 1994, Parham filed a petition, pursuant to section 766.104(2), for an automatic 90-day extension of the two-year statute of limitations. On March 17, 1995, he served notice of his intent to initiate litigation pursuant to section 766.106, and on April 17, 1995, he served an amended notice adding Musculoskeletal Institute.

Parham filed an initial complaint for medical malpractice on July 20, 1995, and an amended complaint which added Dr. Sutterlin as a defendant on September 1, 1995. After considering a series of motions, the trial court eventually concluded that Parham's action was barred and dismissed the amended complaint with prejudice. In its order of dismissal, the trial court made the following pertinent rulings:

As noted earlier it is undisputed that the surgical procedure which forms the basis of this lawsuit occurred on January 29, 1991. Accordingly, on that date the Statute of Repose's time period commenced and the Plaintiffs were required to file their suit on or before January 29, 1995. It is also undisputed that suit was not filed as to Defendants, GENE A. BALIS, M.D. and MUSCULOSKELETAL INSTITUTE, CHARTERED, until July 20, 1995. Defendants CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D., P.A., were not made parties until September 1, 1995, the date on which the Amended Complaint naming them was filed.

In a series of cases the Florida Supreme Court has rejected a number of different attempts to extend the repose time period. See, e.g., Carr v. Broward County, 541 So.2d 92 (Fla. 1989)

; University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991); and, Kush v. Lloyd, 616 So.2d 415 (Fla. 1992). Accordingly, Plaintiffs' contention that the repose time period was extended or tolled by their petition pursuant to Florida Statutes § 766.104 or their service of a "Notice of Intent to Initiate Litigation" 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 case.

Parham, 704 So.2d at 624-25.

On appeal, the district court first noted that the trial court was bound by the district court's earlier decision in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA 1991), wherein it held that the four-year statute of repose was tolled by the service of a notice of intent to initiate medical malpractice litigation because "[t]he `statute of repose' is subsumed in the general term `statute of limitations' of section 95.11(4)." Parham, 704 So.2d at 625. Using that same rationale, the Second District then concluded that "the 90-day extension allowed by section 766.104(2) extends both the statute of limitation and the statute of repose." Id. The district court also commented that "as we explained in Wood [v. Fraser, 677 So.2d 15 (Fla. 2d DCA 1996)], we discern nothing in the holding of Kush which compels us to conclude that it overruled Moore." Id. Accordingly, the Second District reversed and remanded the trial court's order of dismissal. Nevertheless, because of the potential impact of its holding on other medical malpractice claims, the majority opinion certified to this Court the question referred to above as one of great public importance. Parham, 704 So.2d at 625.

Judge Fulmer concurred specially in result only. While agreeing with the majority that the trial court was bound by the district precedent in Moore, Judge Fulmer disagreed with the majority's conclusion that the medical malpractice statute of repose was extended by the relevant provisions in section 766.104 and 766.106. Parham, 704 So.2d at 625 (Fulmer, J., concurring). She articulated three primary objections to the majority's rationale based on her plain-language interpretation of the statutes, the differences between statutes of limitations and repose, and her reading of this Court's caselaw for the proposition that the time periods of each operate in isolation and independent of the other. Id.

LAW AND ANALYSIS

Resolution of this case will be determined by the interplay among sections 95.11(4)(b);¹ 766.104(2);² and 766.106(2),³ Florida Statutes (1989), and the application of our prior caselaw construing various provisions of chapter 766. We begin by analyzing the constituent statutes of chapter 766, which comprise the legislature's statutory scheme for medical malpractice claims.

Statutory Interpretation

The statutory framework governing medical malpractice actions is both uncommonly complex and unique among other Florida statutory schemes.⁴See Kukral v. Mekras, 679 So.2d 278, 280-81 (Fla. 1996) (detailing the numerous procedural requirements of chapter 766). Stringent presuit investigatory requirements are the hallmarks of this framework. Appended to this statutory scheme are the two-year statute of limitations and four-year statute of repose found in section 95.11(4)(b),⁵ which at least one commentator has argued "protect health care providers in a way no other class of defendants is protected." Scott R. McMillen, The Medical Malpractice Statute of Limitations: Some Answers and Some Questions, Fla. B.J., Feb. 1996, at 44, 47.

At the outset, the legislature has made clear its intent regarding medical malpractice lawsuits. That intent and corresponding findings are expressed in section 766.201, Florida Statutes (1989), which provides as follows:

(1) The Legislature makes the following findings:

(a) Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.

(b) The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.

(c) The average cost of defending a medical malpractice claim has escalated in the past decade to the point where it has become imperative to control such cost in the interests of the public need for quality medical services.

(d) The high cost of medical malpractice claims in the state can be substantially alleviated by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney's fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.

(e) The recovery of 100 percent of economic losses constitutes overcompensation because such recovery fails to recognize that such awards are not subject to taxes on economic damages.

(2) It is the intent of the Legislature to provide a plan for prompt resolution of medical negligence claims. Such plan shall consist of two separate components, presuit investigation and arbitration. Presuit investigation shall be mandatory and shall apply to all medical negligence claims and

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