Pearlstein v. Malunney
| Decision Date | 10 December 1986 |
| Docket Number | No. 86-2119,86-2119 |
| Citation | 500 So.2d 585,11 Fla. L. Weekly 2641 |
| Parties | 11 Fla. L. Weekly 2641 Leslie PEARLSTEIN, M.D., and Robert Thacker, M.D., et al., Petitioners, v. John T. MALUNNEY and Earla Malunney, Respondents. |
| Court | Florida District Court of Appeals |
Nelly N. Khouzam of Fowler, White Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for petitioners.
Michael R. Karp, Sarasota, and Gary W. Roberts and Theresa A. DiPaola of Ricci & Roberts, P.A., West Palm Beach, for respondents.
John P. Shevock of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale, for amicus curiae Academy of Florida Trial Lawyers.
Petitioners, defendants in a pending medical malpractice action, seek a writ of certiorari to overturn an order of the trial court which, among other things, declares the prefiling notice requirements of the Comprehensive Medical Malpractice Reform Act of 1985, as set forth in section 768.57, Florida Statutes (1985), unconstitutional. We grant the petition for certiorari.
In brief, the statute mandates that prospective claimants, before filing a formal action for medical malpractice, must serve upon each prospective defendant a notice of intent to initiate litigation. § 768.57(2). As with similarly worded statutory provisions relating to sovereign immunity, the furnishing of such notice is a condition precedent to the institution of a claim. Public Health Trust v. Knuck, 495 So.2d 834 (Fla. 3d DCA 1986). See also Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983); Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979). No suit may be filed for a period of ninety days following the giving of such notice. § 768.57(3)(a). The statute of limitations is tolled during this ninety-day period. § 768.57(4). Upon receipt of the notice, the prospective defendant's insurer or self-insurer must review and evaluate the claim, utilizing one of the several methods set forth in the statute. § 768.57(3)(a). Both the claimant and the prospective defendant must cooperate with the insurer. Further, the claimant may be required to make an appearance before a screening panel or medical review committee or submit to a physical examination. Id. Unreasonable failure of a party to comply with this section justifies dismissal of claims or defenses. Id. At or before the end of the ninety-day period, the insurer or self-insurer must serve the claimant with a response admitting liability, rejecting the claim, or offering a settlement. § 768.57(3)(b). This response must in turn be evaluated by the claimant's attorney, again utilizing the procedures set forth in the statute. § 768.57(3)(d).
In the case before us, respondents filed their complaint without first complying with the notice provisions of section 768.57. Petitioners moved to dismiss the complaint. The trial court denied the motions to dismiss, holding that section 768.57 (1) unreasonably discriminates against medical malpractice litigants, (2) deprives them of their constitutional right of access to the courts, and (3) is unconstitutionally vague. Alternatively, the court ruled that the complaint itself satisfied the notice requirements of the statute.
The Comprehensive Medical Malpractice Reform Act of 1985, Chapter 85-175, Laws of Florida, was enacted in response to a perceived crisis in availability of reasonably-priced health care services, prompted by escalating medical malpractice insurance premiums. We hold, as did the Florida Supreme Court in upholding section 768.50, Florida Statutes (1979), that there exists a valid legislative purpose in insuring the protection of public health by assuring the availability of adequate medical care. Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981). See also McCarthy v. Mensch, 412 So.2d 343 (Fla.1982). The burden rests with the challenger to demonstrate that a statutory provision such as section 768.57 is arbitrary or lacks any rational basis. In re Estate of Greenberg, 390 So.2d 40 (Fla.1980). The respondents have not met that burden in this case.
We find no violation of the "access to the courts" provision of article I, section 21, Florida Constitution; reasonable restrictions may be placed on the exercise of such rights in the public interest. Carter v. Sparkman, 335 So.2d 802 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). We also reject any suggestion that the statute, by temporarily delaying formal medical malpractice litigation, denies prospective plaintiffs their due process rights or the equal protection of the law. McCarthy v. Mensch.
We further disagree with the trial court's finding that the wording of the statute is fatally vague and ambiguous. Rather, we think the meaning is clear. When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, that statute must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217 (Fla.1984). It is true that the statute does not specify any particular form for the notice beyond the requirement that it be in writing. We do not consider that to be a substantial impediment to the drafting of the required notice. It has been held, albeit in the context of sovereign immunity, that any manner of written notice that satisfactorily describes or identifies the occurrence underlying the claim should suffice. Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982). In sum, we hold that section 768.57, Florida Statutes (1985), is constitutional. Therefore, the trial court erred when it refused to require respondents to comply with the requirements of the statute.
We must also reject the trial court's finding that the service of a malpractice complaint will satisfy the statutory notice requirement. Respondents urge that we adopt this alternate position if we uphold the constitutionality of the statute, and that we simply direct the trial court to "abate" the complaint for ninety days. Such a conclusion was implicitly repudiated by the court in Public Health Trust v. Knuck. Instead, we must presume that the legislature meant what it said when it distinguished the filing of a complaint from the furnishing of a prefiling notice. In this case, we might question whether any useful purpose would be served by requiring on remand that respondents supply petitioners with an...
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