Carr v. Broward CountyCarr v. Broward County
This cause is before the Court on petition for review of the Fourth District Court of Appeal‘s decision in Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987). The Fourth District found Carr‘s medical malpractice action, filed more than nine years after the alleged incident causing brain damage to her newborn child, was barred by the statute of repose provisions contained in
The facts reflect that in December, 1975, petitioner Ellen Carr gave birth to a baby who was diagnosed as suffering from severe brain damage. Almost ten years later, in September, 1985, Carr and her husband filed a complaint against the hospital and the treating physicians alleging negligent treatment and that the Carrs, despite their due diligence, were unable to discover the facts and circumstances surrounding prenatal and obstetrical care and the care rendered during birth. The trial court granted the respondents’ motion to dismiss, applying
(b) 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 dilegence; 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.
This statutory section 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.
On appeal, the Fourth District determined that the brain damage injury to the Carr infant was a completed fact at the time of birth and the cause of action was permanently barred after September, 1982, by the seven-year statute of repose provision contained in
Unlike the products liability statute of repose, (section 95.031(2), under which, where fraud is involved, the period runs from “the date of the commission of the alleged fraud“) the incident of malpractice begins the period of repose in a medical malpractice case despite fraudulent concealment. Whether public policy supports such a distinction is a matter for the legislature, not this court, to determine.
The medical malpractice statute of repose had its genesis in section 7 of Chapter 75-9, Laws of Florida, the Medical Malpractice Reform Act of 1975. The public necessity for the statutory reform embodied in the act was expressed by the legislature in the preamble as follows:
WHEREAS, the cost of purchasing medical professional liability insurance for doctors and other health care providers has skyrocketed in the past few months; and
WHEREAS, the consumer ultimately must bear the financial burdens created by the high cost of insurance; and
WHEREAS, without some legislative relief, doctors will be forced to curtail their practices, retire, or practice defensive medicine at increased cost to the citizens of Florida; and
WHEREAS, the problem has reached crisis proportion in Florida, NOW THEREFORE, ... .
We here determine, subject to supreme court scrutiny in this or a later appropriate case, that the legislature has established an overriding public interest meeting the Kluger test as applied in Overland [Const. Co. v. Sirmons, 369 So.2d 572 (Fla. 1979)] and that the statute was therefore validly applied to the Carr‘s [sic] causes of action by the trial court.
Carr, 505 So.2d at 575 (emphasis in original).*
In Phelan, the Third District adopted a contrary view, holding that “where the record does not conclusively show that the alleged medical malpractice was or should have been discovered within four years of its commission, the plaintiff‘s action, although brought after the expiration of the four-year statute of repose, is not barred as a matter of law.” 471 So.2d at 648-49. The Third District reversed and remanded the cause for a determination of whether, if the plaintiff did not or should not have
In Kluger, we specifically addressed the issue of whether the constitutional guarantee of a “redress of any injury” contained in
[W]here a right of access to the courts for redress for a particularly injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to
Fla. Stat. § 2.01, F.S.A. , the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
In a series of subsequent cases, we considered the legislative authority to restrict or limit actions by statutes of repose. Cf. Melendez v. Dreis and Krump Mfg. Co., 515 So.2d 735 (Fla. 1987); Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla. 1985), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986); Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla. 1980); Overland Constr. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla. 1979). In Pullum, we recognized that statutes of repose are a valid legislative means to restrict or limit causes of action in order to achieve certain public interests. Pullum concerned the statute of repose for actions for products liability and fraud as set forth in
The legislature, in enacting this statute of repose, reasonably decided that perpetual liability places an undue burden on manufacturers, and it decided that twelve years from the date of sale is a reasonable time for exposure to liability for manufacturing of a product.
476 So.2d at 659. In Pullum, we receded from Battilla v. Allis Chalmers Manufacturing Co., 392 So.2d 874 (Fla. 1980), which had held that
We find that the Fourth District Court recognized the principles of Kluger and properly applied them in determining that the legislature had found an overriding public necessity in its enactment of
In conclusion, we note the petitioners’ claim of fraud is wholly conclusory. Irrespective of that fact, we find the legislature may properly take into account the difficulties of defending against a stale fraud claim in determining a reasonable period for the statute of repose, and further find seven years is an objectively reasonable period within which the legislature may require fraud claims be discovered. We agree with the district court that
It is so ordered.
EHRLICH, C.J., and McDONALD and GRIMES, JJ., concur.
KOGAN, J., dissents with an opinion, in which SHAW and BARKETT, JJ., concur.
KOGAN, Justice, dissenting.
I respectfully dissent. I would adopt the opinion of the Third District Court of Appeal in Phelan v. Hanft, 471 So.2d 648 (Fla. 3d DCA 1985). To do otherwise, in my opinion, would cause this statute to be unconstitutional as applied to this petitioner by depriving her of her right of access to the courts in violation of
SHAW and BARKETT, JJ., concur.