Parham v. Balis

• Decision Date: 12 November 1997
• Docket Number: No. 96-03037,96-03037
• Citation: 704 So.2d 623
• Parties: 22 Fla. L. Weekly D2613 James S. PARHAM, Appellant, v. Gene A. BALIS, M.D., Chester E. Sutterlin, III, M.D., Chester E. Sutterlin, III, M.D., P.A., and Musculoskeletal Institute Chartered, Appellees.
• Court: Florida District Court of Appeals

Page 623

704 So.2d 623

22 Fla. L. Weekly D2613

James S. PARHAM, Appellant, v. Gene A. BALIS, M.D., Chester E. Sutterlin, III, M.D., Chester E. Sutterlin, III, M.D., P.A., and Musculoskeletal Institute Chartered, Appellees.

No. 96-03037.

District Court of Appeal of Florida Second District.

Nov. 12, 1997.

Rehearing Denied Feb. 9, 1998.

William J. Terry, Tampa, for Appellant.

Clifford L. Somers, Tampa, for Appellee Gene A. Balis, M.D.

Martin B. Unger and Brian D. Stokes of Unger, Swartwood, Latham & Whitaker, P.A., Orlando, for Appellees Chester E. Sutterlin, III, M.D. and Chester E. Sutterlin, III, M.D., P.A.

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

PER CURIAM.

James S. Parham, plaintiff in a medical malpractice action, appeals the dismissal of his amended complaint which the trial court found to be barred by the statute of repose contained in section 95.11(4)(b), Florida Statutes (1989). ¹ This statute prescribes: (1) a statute of limitations of two years; (2) a statute of repose of four years absent fraud or intentional misconduct; and (3) a statute of repose of seven years where there is an allegation that fraud, concealment, or intentional misrepresentation of fact prevented discovery of the negligent conduct. The issue raised in this appeal is whether the extensions of the statute of limitations allowed by sections 766.104(2) ² and 766.106(4), FLORIDA STATUTES (1989)³, also extend the statute of repose. We hold that they do and, therefore, reverse the order of dismissal.

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.

We first observe that the trial court was without authority to reject our opinion in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA 1991). See Wood v. Fraser, 677 So.2d 15 (Fla. 2d DCA 1996). In Moore, this court determined that the four-year statute of repose was tolled by the service of a notice of intent to initiate medical malpractice litigation as provided for in section 768.57(4), Florida Statutes (1987) [now transferred to 766.106(4) ] because "[t]he 'statute of repose' is subsumed in the general term 'statute of limitations' of section 95.11(4)." Applying the same reasoning that we applied in Moore, we conclude that the 90-day extension allowed by section 766.104(2) extends both the statute of limitation and the statute of repose. Furthermore, as we explained in Wood, we discern nothing in the holding of Kush which compels us to conclude that it overruled Moore. Even though the trial court here apparently reached a different conclusion, "in the absence of a clear expression from the Florida Supreme Court, the issue of whether one of our opinions is in conflict with a later supreme court opinion should be left to our determination." Wood, 677 So.2d at 18.

Accordingly, we reverse the trial court's order dismissing the amended complaint and remand for further proceedings consistent with this opinion.

Because our holding in this case will potentially impact many medical malpractice claims, we certify the following question as one 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 OFREPOSE CONTAINED IN SECTION 95.11(4)(B), FLORIDA STATUTES (1989)?

THREADGILL, A.C.J., and PATTERSON, J., concur.

FULMER, J., concurs specially in result only.

FULMER, Judge, concurring.

I concur with the majority only because I agree that the trial court erred by rejecting our opinion in Moore, 579 So.2d 188. As we stated in Wood, 677 So.2d at 18-19, "[U]ntil such time as the supreme court overrules Moore, or we recede from it en banc, or the Florida legislature clearly expresses its disapproval of Moore by a subsequent statutory enactment, trial courts in this district are firmly bound by its holding."

However, I disagree with this court's holding in Moore that "[t]he '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." 579 So.2d at 190. This holding is premised upon the conclusion that "[t]o hold otherwise would frustrate the legislative intent of section 768.57 in its entirety." I also disagree with this conclusion. Therefore, I would have taken this opportunity to recede from Moore and would have affirmed the trial court's ruling.

It is my view that the statute of repose in 95.11(4)(b) is neither extended nor tolled by the provisions of sections 766.104 and 766.106. Rather, it begins to run on the date the incident of medical malpractice occurs and continues to run without regard to what is transpiring with the cause of action or the statute of limitations, until it expires either four or seven years later, thereby barring any action not yet filed. ⁴ My conclusion is based on a plain reading of the statutes, the differences between a statute of limitations and a statute of repose, and the supreme court's recognition that the time periods of each operate independent of the other.

When the language of a statute is clear and unambiguous, the statute must be given its plain and ordinary meaning. Courts are without power to construe an unambiguous statute in a way which would modify its express terms. See Holly v. Auld, 450 So.2d 217 (Fla.1984). Section 95.11(4)(b) was originally enacted as part of the Medical Malpractice Reform Act of 1975. See Ch. 75-9, Laws of Fla. The provisions contained in sections 766.104(2) and 766.106(4) were originally enacted as part of the Comprehensive Medical Malpractice Reform Act of 1985. See Ch. 85-175, Laws of Fla. Therefore, at the time the legislature drafted the language in sections 766.104 and 766.106, respectively granting "an automatic 90-day extension of the statute of limitations" and providing that "the statute of limitations is tolled" during the 90-day period following service of the notice of intent, section 95.11 had been in existence for ten years and provided for both a statute of limitations and a statute of repose. A plain reading of these statutes requires the conclusion that the legislature intended to "extend" and "toll" only the statute of limitations.

This conclusion is also consistent with the language in the repose provisions of section 95.11(4)(b) which provides: "however, in no event shall the action be commenced later than 4 years" and "but in no event to exceed 7 years." I believe the words "in no event" preclude a statutory interpretation that allows an extension or a tolling of the four or seven year period. Furthermore, contrary to the suggestion in Moore that its holding was carrying out legislative intent, I would hold that limiting these statutes to their plain meaning is consistent with the distinctions between a statute of limitations and a statute of repose.

A statute of limitations is a procedural device that establishes a time period within which an action must be brought, and begins to run at the time an injury occurs or is discovered. It, therefore, operates as a defense to limit the remedy available on an accrued cause of action. A statute of repose cuts off a...