Nehme v. Smithkline Beecham Clinical Laboratories, Inc.

• Decision Date: 25 September 2003
• Docket Number: No. SC02-1680.,SC02-1680.
• Citation: 863 So.2d 201
• Parties: Naji NEHME, etc., Petitioner, v. SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC., etc., et al., Respondents.
• Court: Florida Supreme Court

863 So.2d 201

Naji NEHME, etc., Petitioner, v. SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC., etc., et al., Respondents.

No. SC02-1680.

Supreme Court of Florida.

September 25, 2003.

Earl Denney of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, FL; and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, FL, for Petitioner.

Mercer K. Clarke and Spencer T. Kuvin of Clarke, Silvergate, Williams & Montgomery, Miami, FL; Andrew T. Bayman of King & Spalding, Atlanta, Georgia; Jennings L. Hurt, III, John P. Daly, and Karissa O. McAloon of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, Florida; and Arthur J. England, Jr. And Julissa Rodriguez of Greenberg Traurig, P.A., Miami, FL, for Respondents.

Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Falk, Coral Gables, Florida, and Hal B. Anderson of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, FL, for Florida Defense Lawyers Association, Amicus Curiae.

CANTERO, J.

In this case, we must interpret a statute of repose applicable to medical malpractice cases. Section 95.11(4)(b), Florida Statutes (1993), extends the normal four-year statute of repose for such actions to seven years when "fraud, concealment, or intentional misrepresentation of fact" prevents discovery of the injury. The Fifth District Court of Appeal has certified the following question of great public importance:

DOES THE TERM CONCEALMENT AS USED IN SECTION 95.11(4)(b), FLORIDA STATUTES, ENCOMPASS NEGLIGENT DIAGNOSIS BY A MEDICAL PROVIDER?

Nehme v. Smithkline Beecham Clinical Labs., Inc., 822 So.2d 519, 522 (Fla. 5th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question in the negative and approve the decision of the Fifth District Court of Appeal.

I.

On May 23, 1994, thirty-year-old Rhonda Nehme had a gynecological examination and pap smear at the Volusia County Public Health Department. The slide of the pap smear was delivered to Smithkline Beecham Clinical Laboratories, Inc. Smithkline then sent the slide to Shutze & Techman, P.A., the predecessor corporation of Premiere Medical Laboratories, P.A., for interpretation. In a June 1994 report, a cytotechnologist at Shutze & Techman interpreted the slide as "normal" and "within normal limits." Because the slide was interpreted as normal, no other cytologist or pathologist reviewed it, nor was the slide chosen for a random oversight review. Later expert testimony revealed that the interpretation was "egregious" and that the cytopathological evidence of malignancy was as "big as a house." Mrs. Nehme was diagnosed with cervical cancer in February 1997, of which she died in December 1997.

In September 1999, over five years after the pap smear report, petitioner Naji Nehme filed a medical malpractice and wrongful death complaint alleging that the cytotechnologist had misinterpreted the pap smear and that a proper interpretation would have revealed the existence of the malignancy. The petitioner sought damages on behalf of the estate, himself, and the Nehmes' six minor children. The respondents Smithkline, Premier, and Dr. Shutze moved for summary judgment, arguing that the case was barred by the four-year statute of repose as set forth in section 95.11(4)(b), Florida Statutes, which requires that any medical malpractice action be commenced no later than four years from the date of the incident or occurrence. The trial court granted summary judgment in favor of the respondents.

On appeal, the petitioner argued that the statute of repose should be extended to the full seven years allowed by section 95.11(4)(b) in cases of fraud, concealment, or intentional misrepresentation of fact. The Fifth District disagreed and affirmed in accordance with Myklejord v. Morris, 766 So.2d 1160 (Fla. 5th DCA 2000) (plurality opinion), review denied, 789 So.2d 347 (Fla.2001). Nehme, 822 So.2d at 522. The Fifth District noted, however, that Myklejord is not binding precedent because only one of the judges on the panel concurred in its reasoning. Nehme, 822 So.2d at 521-22. The Fifth District also recognized that both the plurality and the dissent in Myklejord relied on Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Therefore, because the "language in Nardone can be read to support a conclusion either way, as evidenced by Myklejord," the Fifth District certified the question of great public importance. Nehme, 822 So.2d at 522.

II.

At issue is whether the term "concealment" as used in section 95.11(4)(b), Florida Statutes, encompasses negligent diagnosis by a medical provider. As an initial matter, however, the parties disagree as to whether the pre-1996 or post-1996 version of section 95.11(4)(b) applies in this case. The petitioner relies on the post-1996 version of the statute, while the respondents argue the pre-1996 version should apply. The Fifth District relied on the post-1996 version. See Nehme, 822 So.2d at 521

(citing § 95.11(4)(b), Fla. Stat (2000)). The pre-1996 version of the statute provides:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An "action for medical malpractice" is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

§ 95.11(4)(b), Fla. Stat. (1993) (emphasis added). The post-1996 version does not contain the above-underlined phrase. See § 95.11(4)(b), Fla. Stat. (Supp.1996). The law that enacted the amendment in 1996 provided: "this act shall take effect July 1, 1996, and shall not apply to causes of action arising from acts, events, or occurrences that take place before that date." Ch. 96-167, § 2, Laws of Fla. The "act, event, or occurrence" which the cause of action arose out of in this case was the alleged negligent diagnosis of Mrs. Nehme's pap smear slide in 1994. Therefore, the pre-1996 version of section 95.11(4)(b) applies.

As quoted above, section 95.11(4)(b), Florida Statutes (1993), extends the normal four-year statute of repose in a medical malpractice action to seven years in cases of "fraud, concealment, or intentional misrepresentation of fact." The statute does not define "concealment," and the parties disagree about its meaning. The petitioner contends that the term "concealment" does not require knowledge, while the respondents argue that it does.

"Because the statute does not define the term [concealment], the Court must resort to canons of statutory construction in order to derive the proper meaning." Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). "One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature." Green v. State, 604 So.2d 471, 473 (Fla.1992). "When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary." Seagrave, 802 So.2d at 286; see also L.B. v. State, 700 So.2d 370, 372 (Fla.1997)

(stating that "a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term").

To extend the repose period, the statute requires that "concealment" prevent "the discovery of the injury." "Conceal" is defined as (1) to prevent disclosure or recognition of; and (2) to place out of sight. Merriam Webster's Collegiate Dictionary 238 (10th ed.1994). More specifically, "concealment" is defined as (1) the act of refraining from disclosure; esp. an act by which one prevents or hinders the discovery of something; and (2) the act of removing from sight or notice; hiding. Black's Law Dictionary 282 (7th ed.1999). Under these definitions, concealment connotes knowledge.

Other tools of statutory construction also lead us to conclude that concealment implies knowledge. Under the doctrine of noscitur a sociis (a word is known by the company it keeps), one examines the other words used within a string of concepts to derive the legislature's overall intent. See Cepcot Corp. v. Dept. of Bus. & Prof'l Reg., 658 So.2d 1092, 1095 (Fla. 2d DCA 1995)

; Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963). Here, the string of concepts in the statute is "fraud, concealment, or intentional misrepresentation of fact." "Fraud" is generally defined as (1) a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; and (2) a misrepresentation made recklessly without belief in its truth to induce another person to act. Black's Law Dictionary 670 (7th ed.1999). "Intentional misrepresentation of fact" is the intentional (done with the aim of carrying out the act) act of making a false or misleading statement about something. Id. at 814, 1016. Applying the doctrine of noscitur a sociis, because both "fraud" and "intentional misrepresentation of fact" involve a...