STATEMENT OF THE CASE AND OF THE FACTS. Balis, M.D. (Dr. Balis), a neurosurgeon, and Chester E. Sutterlin, III, M.D. (Dr.

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1 STATEMENT OF THE CASE AND OF THE FACTS Plaintiff, James S. Parham (Mr. Parham), who was an Assistant State Attorney, fell in the Hillsborough County Courthouse and injured his back. (R 27) His injuries were treated by Gene A. Balis, M.D. (Dr. Balis), a neurosurgeon, and Chester E. Sutterlin, III, M.D. (Dr. Sutterlin), an orthopedic surgeon, with two surgical procedures, one on December 18, 1990 and one on January 29, 1991, which included using mechanical fixation devices known as pedicle screws. (R 28) Mr. Parham contends that he did not become aware of the alleged medical malpractice until December 17, 1993 when he saw a television show about pedicle screws. (R 28) On December 16, 1994, Mr. Parham filed a pro se petition for extension of the statute of limitations. (R 38) On March 16, 1995, a notice of intent to initiate litigation was sent. (R 39) Other notices and paperwork were sent relating to notice of intent to initiate litigation which is not relevant to the issues regarding this petitioner. Suit was filed against this petitioner on July 20, Dr. Sutterlin filed a motion to dismiss the amended complaint. (R 49-55) An order was entered denying that motion. (R 75-77) A motion for rehearing was filed on February 2, (R 84-91) Dr. Balis filed a motion for summary judgment on May 14, (R ) On June 7, 1996, an amended final order on defendant Sutterlin s motion for rehearing was entered. (R ) That order dismissed the cause with respect to all defendants (which was by agreement of all counsel as a method of concentrating all issues in one document). A timely appeal ensued. The Second District Court of Appeal filed its opinion on 1

2 November 12, Dr. Sutterlin served a motion for rehearing en banc on November 24, That motion was denied on February 9, Dr. Balis filed his notice to invoke discretionary jurisdiction on February 18, SUMMARY OF ARGUMENT The trial court correctly dismissed plaintiff s claims. Sections (2) and (4), Fla. Stat. (1989) do not and cannot extend the statute of repose contained in 95.11(4)(b), Fla. Stat. (1989). The chapter 766 statutes refer only to the statute of limitations. The statute of repose specifically says that in no event shall an action be brought more than four years after the act of negligence. In order to provide an exception to such a statement, the chapter 766 statutes should say so. Further, the rationale for its decisions by the Second District Court of Appeal that the statute of repose is subsumed in the statute of limitations is manifestly incorrect. Statutes of repose and statutes of limitation are different. They are different in terms of what starts them running and they are different in terms of the effect that they have. This Honorable Court has pointed that out in at least two decisions. Therefore, the determination by the Second District Court of Appeal that the statute of repose is or could be subsumed in the statute of limitation cannot be sustained. Because that is the only basis for all three of the Second District Court of Appeal s decisions, those decisions are incorrect and the dismissal of plaintiff s claims by the trial court in this cause should be reinstated. 2

3 ARGUMENT THE EXTENSIONS OF THE STATUTE OF LIMITATIONS ALLOWED BY SECTIONS (2) and (4), FLORIDA STATUTES (1989) DO NOT ALSO EXTEND THE STATUTE OF REPOSE CONTAINED IN SECTION 95.11(4)(B), FLORIDA STATUTES (1989). The question certified to this court by the Second District Court of Appeal was actually phrased as follows: Do the extensions of the statute of limitations allowed by Sections (2) and (4), Florida Statutes (1989), also extend the statute of repose contained in Section 95.11(4)(B), Florida Statutes (1989)? That issue has been restated by this petitioner in argument answering the question in the negative. The relevant dates to these issues are as follows: 1. January 29, 1991 (last surgical procedure) 2. December 16, 1994 (petition for extension filed) 3. January 29, 1995 (last day under the statute of repose if it were not extended) 4. March 17, 1995 (notice of intent served on petitioner Balis) 5. July 20, 1995 (suit filed against this petitioner) For the convenience of the court, the statutory provisions in question are set forth below (4)(b) 1, Fla. Stat. (1989) provides in relevant part as follows: 1 The Second District Court of Appeal cited this statute as 95.11(4)(B), but the upper case B is incorrect. 3

4 (b) An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two 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 four years from the date of the incident or occurrence out of which the cause of action accrued. (The emphasized provisions comprise the statute of repose.) (2), Fla. Stat. (1989) reads in relevant part as follows: (2) Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $25.00 established by the chief judge an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1) (4), Fla. Stat. (1989) reads in relevant part as follows: (4) The notice of intent to initiate litigation shall be served within the time limit set forth in s However, during the 90-day period the statute of limitations is tolled as to all potential defendants. Unless both (2) and (4) extend or toll the statute of repose, this cause was not timely filed against this petitioner. Neither of those statutes specifically says that it serves to extend or toll the statute of repose. Nevertheless, the Second District Court of Appeal decided in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2 nd DCA 1991) and in Wood v. Fraser, 677 So.2d 15 (Fla. 2 nd DCA 1996) that (4), the notice of intent statute, did in fact toll the statute of repose. In its opinion in the instant cause, the Second District decided that (2) also extends the statute of repose. The reasoning given by the Second District in all three cases is that... the statute of repose is subsumed in the general term statute of limitations 4

5 of Section 95.11(4)... Moore, supra, at 579; Wood, supra, at 17; Parham v. Balis, 22 Fla. L. Weekly, D2613 at The Second District is saying that when (2) and (4) refer to the statute of limitations they must be read to include the statute of repose. It is the position of this petitioner that the Second District is manifestly wrong. The statutes not only do not encourage that reading, they contradict it. Furthermore, the rationale given for its conclusion by the Second District, to-wit: that the statute of repose is subsumed in the statute of limitations, is contradicted by decisions of this court. Dealing first with the statutes, neither of the chapter 766 statutes explicitly refers to the statute of repose. They both explicitly refer only to the statute of limitations. For medical malpractice, both provisions are contained in the same statutory section, but they are clearly different. When the Second District reads the 766 provisions to include not only the statute of limitations but the statute of repose, it is interpreting something into the statute that isn t there. There is not only no compelling reason to do that, there is a compelling reason not to do it. The compelling reason not to do it is that the statute of repose explicitly says that... in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. (emphasis supplied) If the legislature had intended the chapter 766 statutes to affect the statute of repose, it could have said so. In light of the fact that it specifically said that in no event shall an action be commenced more than four yeas after the negligent act, there seems to be good reason not to imply an exception that is not stated. The chapter 766 statutes are not vague or ambiguous and do not require interpretation. The Second District Court of Appeal did not in Moore, Wood or this case even pretend to 5

6 make a detailed analysis of these statutes in terms of the various doctrines concerning statutory interpretation. Instead, the Second District relied on its rationale that statutes of limitation and statutes of repose are basically the same thing and therefore statutes of repose are subsumed in statutes of limitation. That the Second District is wrong in drawing that conclusion can be illustrated by a discourse on the statute of repose contained in Carr v. Broward County, 505 So.2d 568 (Fla. 4 th DCA 1987) at 570: Before we can define the limits within which a statute of repose permissibly operates, we need to distinguish this device from statutes of limitation in two particulars. First, a statute of limitation bars enforcement of an accrued cause of action whereas a statute of repose not only bars an accrued cause of action, but will also prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute.... A second distinction may be made with reference to the event from which time is measured. A statute of limitation runs from the date the cause of action arises: that is, the date on which the final element (ordinarily, damages, but it may also be knowledge or notice) essential to the existence of a cause of action occurs. The period of time established by a statute of repose commences to run from the date of an event specified in the statute, such as delivery of goods, closing on a real estate sale or the performance of a surgical operation. At the end of the time period, the cause of action ceases to exist. This court affirmed the decision of the Fourth District Court of Appeal in Carr v. Broward County, 541 So.2d 92 (Fla. 1989). Not only that, in Kush v. Lloyd, 66 So.2d 415 (Fla. 1992), this court actually quoted the above language with approval at page 419 of the opinion. Further, in Kush, this court said at as follows: 6

7 [T]he medical malpractice statute of repose represents a legislative determination that there must be an outer limit beyond which medical malpractice suits may not be instituted. In creating a statute of repose which was longer than the two-year statute of limitation, the legislature attempted to balance the rights of injured persons against the exposure of health care providers to liability for endless periods of time. Thus, it is clear this court believed there were important policy differences between statutes of limitation and statutes of repose. Without intending to belabor the point, there are two fundamental differences between a statute of limitation and a statute of repose. These have to do with (1) when the statutes begin to run and (2) the effect each has. It is impossible to say that a statute of limitation and a statute of repose are the same thing. It is impossible to imagine how a statute which is fundamentally different from another statute can be subsumed in that other statute. Certainly in mathematics, an entity which has different elements from another entity cannot be subsumed into the category of that other entity. That is, to be subsumed, an entity has to have only elements contained by that into which it is subsumed. It can have fewer of those elements but it cannot have different elements. It follows from the foregoing, that the statutory provisions do not admit of an interpretation that the chapter 766 statutes relate to or affect the statute of repose. Thus, the claims in this cause were not timely brought and are barred by the statute of repose. 7

8 CONCLUSION The trial court correctly dismissed plaintiff s claims with prejudice. The Second District Court of Appeal erroneously reversed the trial court. Section (2) and (4), Fla. Stat. (1989) do not extend the statute of repose contained in Section 95.11(4)(b), Fla. Stat. (1989). Petitioner would urge this Honorable Court to reverse the decision of the Second District Court of Appeal and order this case sent back for re-instatement of the trial court s dismissal. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to WILLIAM J. TERRY, Barnett Plaza, #2560, 101 E. Kennedy Blvd., Tampa, FL 33602, THOMAS M. HOELER and GLENN M. BURTON, P.O. Box 2378, Tampa, FL and MARTIN B. UNGER and BRIAN D. STOKES, P.O. Box 790, Orlando, FL , by U.S. Mail, this 30 th day of March, SOMERS & ASSOCIATES CLIFFORD L. SOMERS 3242 Henderson Blvd., #301 Tampa, FL / Fax Florida Bar # Attorneys for Petitioner, Gene A. Balis, M.D. 8