Virginia Ins. Reciprocal v. Walker, No. 1D99-2426.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PADOVANO, J.
• Citation: 765 So.2d 229
• Docket Number: No. 1D99-2426.
• Decision Date: 01 August 2000
• Parties: VIRGINIA INSURANCE RECIPROCAL, as subrogee of Scottish Rite Children's Medical Center, Inc., Appellant, v. Frank C. WALKER, Jr., M.D., and North Florida Pediatric Associates, P.A., Appellees.

765 So.2d 229

VIRGINIA INSURANCE RECIPROCAL, as subrogee of Scottish Rite Children's Medical Center, Inc., Appellant,
v.
Frank C. WALKER, Jr., M.D., and North Florida Pediatric Associates, P.A., Appellees

No. 1D99-2426.

District Court of Appeal of Florida, First District.

August 1, 2000.

765 So.2d 230

Michael T. Callahan, Tallahassee, for Appellant

Craig A. Dennis and William T. Jackson of Dennis & Bowman, P.A., Tallahassee, for Appellees.

PADOVANO, J.

The plaintiff, Virginia Insurance Reciprocal, appeals a final summary judgment on its claim for contribution against the defendants, Dr. Frank C. Walker and his professional association. The trial court determined that the plaintiffs compliance with the medical malpractice presuit screening procedure was unnecessary and therefore ineffective to toll the running of the statute of limitations for contribution claims. We conclude that the medical malpractice presuit screening requirements apply to an action for contribution based on the alleged medical negligence of a joint tortfeasor. Although such an action is one that is asserted by a health care provider and not by the injured party, it is, nonetheless, an action arising out of the rendering or failure to render medical care. Because the plaintiffs complaint was filed within the applicable time limit as tolled, the summary judgment for the defendants must be reversed.

The controversy between the parties in this case arose after the settlement of a medical malpractice claim by Ann and Robert Aumon against the Scottish Rite Children's Medical Center. The Aumons' claim involved the care and treatment of their daughter, Emily, who was admitted to the Scottish Rite Medical Center in Atlanta on June 4, 1991, the day after she was born. Emily was a patient at Scottish Rite for ten days and, after her discharge, she came with her family to Tallahassee where she was treated by the defendant, Dr. Frank C. Walker.

The Aumons continued to take Emily to Dr. Walker for eleven months until they obtained a second opinion regarding the nature of her medical problem. On May 15, 1992, Dr. Larry Deeb diagnosed Emily with a condition known as congenital hypothyroidism. This condition can be detected by routine metabolic testing and it can be treated effectively if the diagnosis is made soon after birth. However, the testing required to diagnose hypothyroidism was not done by the physicians at Scottish Rite or by Dr. Walker.

Following Dr. Deeb's diagnosis, the Aumons filed a medical malpractice suit against Scottish Rite in Georgia. They alleged that the hospital physicians' failure to properly diagnose Emily's condition left her with permanent physical impairments and mental retardation. Virginia Insurance Reciprocal, the insurance carrier for Scottish Rite, settled with the Aumons for $1.65 million on June 11, 1997, and then prepared to assert a contribution claim against Dr. Walker.

The contribution claim by the plaintiff, Virginia Insurance Reciprocal, was to be based on an allegation that Dr. Walker was also negligent in failing to diagnose Emily's condition and that his negligence was partly the cause of the loss for which the plaintiff had compensated the Aumons. Because the contribution claim was founded on a claim of medical malpractice, the

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plaintiff complied with the medical malpractice presuit screening requirements of sections 766.104 and 766.203, Florida Statutes. On May 14, 1998, the plaintiff filed a notice of intent to initiate litigation. The claim was not resolved in the screening process, so the plaintiff filed a complaint in the circuit court against the defendants, Dr. Walker and his professional association. The complaint was filed on November 13, 1998, within the sixty-day tolling period set by section 766.106(4), Florida Statutes

The defendants filed an answer and moved for summary judgment on the ground that the contribution claim was barred by the statute of limitations. The plaintiff did not dispute the fact that the complaint had been filed more than one calendar year after it had settled the claim on behalf of Scottish Rite. However, the plaintiff argued that the statute of limitations was tolled during the presuit screening procedure and that the complaint was timely when this period is accounted for in computing the one-year period. In response, the defendants maintained that the presuit screening requirements are inapplicable to contribution claims and, consequently, the effort to comply in the present case had no effect on the statute of limitations.

The trial court concluded that the statute of limitations had not been tolled during the period in which the plaintiff was attempting to comply with the presuit screening procedure and therefore held that the complaint was untimely. This conclusion was based on the precedent established by the Fourth District Court of Appeal in Wendel v. Hauser, 726 So.2d 378 (Fla. 4th DCA 1999). The trial court acknowledged the possibility that Wendel might not be a correct statement of the law, but concluded that it was binding nevertheless. The court rendered a final summary judgment for the defendants, and the plaintiff then filed this appeal to review the judgment.

We begin with the standard of review of summary judgments, which has two steps. First, the appellate court must determine whether there was a genuine issue of material fact on the claim or defense adjudicated by summary judgment. In deciding this issue, the court must view every inference in favor of the party against whom the summary judgment was rendered. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Smith v. Perry, 635 So.2d 1019 (Fla. 1st DCA 1994); Williams v. Bevis, 509 So.2d 1304 (Fla. 1st DCA 1987). The second question is a pure question of law. Assuming there is no dispute of fact, the appellate court must determine whether the trial court was correct in holding that the moving party was entitled to a judgment as a matter of law. See Menendez v. Palms West Condominium Ass'n, Inc., 736 So.2d 58 (Fla. 1st DCA 1999). Because the motion for summary judgment in this case turns on the application of a point of law concerning the statute of limitations, we review the decision of the trial court by the de novo standard of review.

To properly address the issue on appeal we must first consider a few basic principles of the law of contribution. With limited exceptions, the right of contribution was not recognized at common law. See Chiang v. Wildcat Groves, Inc., 703 So.2d 1083 (Fla. 2d DCA 1997); Hyster Co. v. David, 612 So.2d 678 (Fla. 1st DCA 1993). In 1975, the Florida Legislature adopted the Uniform Contribution Among Tortfeasors Act, which provides in material part that "[t]he right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability." See § 768.31(2)(b). Fla. Stat. A party may now initiate a claim for contribution, even though a judgment has not yet been entered against the joint tortfeasor. See § 768.31(2)(a), Fla. Stat. (1997).

Section 768.31(4), Florida Statutes provides that a complaint for contribution must be filed within one year of the date of

765 So.2d 232

the settlement in which the claimant has agreed to make payment on the common liability. However, this statute does not always control the timeliness of a contribution action. For example, in State v. Echeverri, 736 So.2d 791 (Fla. 3d DCA 1999), the court held that a contribution action based on an alleged defective design in construction was barred by the statute of repose for actions founded on the design or construction of buildings,...