IN THE SUPREME COURT OF FLORIDA INITIAL BRIEF ON THE MERITS OF PETITIONERS CHESTER E. SUTTERLIN, III, M.D. AND CHESTER E. SUTTERLIN, III, M.D., P.A.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHESTER E. SUTTERLIN, III, M.D., and CHESTER E. SUTTERLIN, III, M.D., P.A., Petitioners, vs. Case No. 92,382 JAMES S. PARHAM, Respondent. / INITIAL BRIEF ON THE MERITS OF PETITIONERS CHESTER E. SUTTERLIN, III, M.D. AND CHESTER E. SUTTERLIN, III, M.D., P.A. MARTIN B. UNGER, ESQUIRE Florida Bar No.: BRIAN D. STOKES, ESQUIRE Florida Bar No.: UNGER, SWARTWOOD, LATHAM & INDEST, P.A. 701 Peachtree Road ( ) Post Office Box 4909 Orlando, Florida (407) Attorneys for Petitioners, CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D. P.A.

2 TABLE OF CONTENTS Table of Citations 3 Preface 5 Statement of the Case and Facts 6 Issue on Appeal 9 Summary of Argument 10 Argument 11 Conclusion 21 Certificate of Service 22 Page 2

3 TABLE OF CITATIONS CASES PAGE Carr v. Broward County, 505 So.2d 568 (Fl. 4th DCA 1987) 17 Carr v. Broward County, 541 So.2d 92 (Fl. 1989) 10, 16, 17, 18, 19 Damiano v. McDaniel, 689 So.2d 1059 (Fl. 1997) 18, 19 Dampf v. Furst, 624 So.2d 368 (Fl. 3d DCA 1993) 16 Kush v. Lloyd, 616 So.2d 415 (Fl. 1992) 10, 12, 16, 17, 18, 19 Moore v. Winter Haven Hospital, 579 So.2d 188 (Fl. 2d DCA 1991) 13 Padgett v. Shands, 616 So.2d 467 (Fl. 1st DCA 1993) 16 Parham v. Sutterlin, 22 FLW D2613 (Fl. 2d DCA 11/12/97) 14, 15 Tanner v. Hartog, 618 So.2d 178 (Fl. 1993) 19 University of Miami v. Bogorff, 583 So.2d 1000 (Fl. 1991) 10, 13, 16, 17, 18, 19 Wood v. Frasier, 677 So.2d 15 (Fl. 2d DCA 1996) 13 Page 3

4 OTHER AUTHORITIES Section 95.11(4)(b), Florida Statutes (1989) 10, 11, 16, 19 Section , Florida Statutes (1989) 10, 12, 13, 15, 16 Section , Florida Statutes (1989) 10, 12, 13, 15, 16 Page 4

5 PREFACE For the sake of convenience and clarity, Petitioners, CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D., P.A. will be referred to collectively as Sutterlin. Petitioners, GENE A. BALIS, M.D. and MUSCULOSKELETAL INSTITUTE CHARTERED, will be referred to as Balis and Institute, respectively. The Respondent, JAMES S. PARHAM, will referred to herein as Parham. References to the record on appeal shall be made as (R.). References to any transcripts will be referenced as (T.). Page 5

6 STATEMENT OF THE CASE AND FACTS This is an appeal of the trial court s dismissal of an action for medical malpractice. The dismissal was based upon the expiration of the four (4) year statute of repose applicable to medical malpractice actions. The facts relevant to the dismissal do not appear to be in dispute. 1 The Amended Complaint filed in this cause seeks damages for medical malpractice alleged to have occurred, if at all, during two surgical procedures performed on Parham on December 19, 1990 and January 29, (R ). It is alleged that the two procedures on the cervical spine involved both posterior neck surgery with fixation, using a mechanical fixation device generally referred to as plates and screws, with bone graft and corpectomy with anterior bone graft surgery. (R ). On December 16, 1994, Parham applied for and received an automatic ninety (90) day extension of the statute of limitations as provided for in Section , Florida Statutes (1989). On March 16, 1995, Parham, in an apparent attempt to comply with Section , Florida Statutes (1989) served, by certified mail, return receipt requested, upon Sutterlin a document entitled Notice of Intent to Initiate Litigation. However, the affidavit of Howard Balensweig, M.D. attached to this document did not meet the requirements of the statute. As a result, it was ineffective to commence the mandatory presuit review process. (R ). 1 This statement is in no way intended to suggest that Sutterlin admits negligence in the care rendered to Parham or liability for any damages claimed by Parham. Page 6

7 Accordingly, on April 17, 1995 Parham served, by certified mail, return receipt requested, upon Sutterlin a second or amended Notice of Intent to Initiate Litigation to which was attached an affidavit from Dr. Balensweig which appeared to comply with the applicable statutes. (R ). Suit was filed on July 20, 1995 against Balis and Institute only. (R. 1-21). Parham s Amended Complaint naming Sutterlin as additional defendants was filed on September 1, (R ). In response, Sutterlin moved to dismiss the Amended Complaint, among other things, on the ground that Parham s cause of action was barred by the expiration of the statute of repose time period established in Section 95.11(4)(b), Florida Statutes (1989). (R ). During a hearing held on December 18, 1995, the trial court denied the motion to the extent it was based upon these grounds. (R ). Sutterlin timely moved for rehearing of his motion to dismiss. (R ). After hearings on April 22 and May 2, 1996 the trial court granted rehearing and, in turn, granted Sutterlin s motion, finding that Parham s cause of action was barred by the statute of repose. As a result, Parham s amended complaint was dismissed by order dated June 7, (R ). On July 3, 1996 Parham timely filed his Notice of Appeal to the Second District Court of Appeal challenging the dismissal. (R ). On November 12, 1997 the Second District Court of Appeal issued its opinion reversing the trial court s order of dismissal of the amended complaint. In doing so, that court certified as a question of great public importance the following: DO THE EXTENSIONS OF THE STATUTE OF LIMITATIONS Page 7

8 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)? Sutterlin timely filed for rehearing and rehearing en banc. By order dated February 9, 1998 these requests were denied. Thereafter, on February 12, 1998, Sutterlin timely filed his Notice to Invoke Discretionary Jurisdiction of this Court. Page 8

9 ISSUE ON APPEAL WHETHER THE TRIAL COURT PROPERLY DISMISSED PARHAM S AMENDED COMPLAINT AND CAUSE OF ACTION BASED UPON THE EXPIRATION OF THE STATUTE OF REPOSE AND CONCLUDING THAT 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). Page 9

10 SUMMARY OF ARGUMENT The trial court was correct and acted properly in dismissing Parham s amended complaint and this cause of action as barred by the expiration of the statute of repose time period and in concluding that 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). As noted earlier it is undisputed that the last surgical procedure which forms the basis of this lawsuit occurred on January 29, Accordingly, on that date the statute of repose s time period commenced. Parham was, therefore, required to file suit on or before January 29, Litigation was not commenced until July 20, 1995 and then only as to Balis and Institute. Sutterlin was not joined as a party until September 1, 1995, the date on which the Amended Complaint was filed. As these dates are more than four years after the latest date on which the repose time period could have commenced, Parham s suit is untimely and barred by the statute of repose. In a series of cases this 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 (Fl. 1989); University of Miami v. Bogorff, 583 So.2d 1000 (Fl. 1991); and, Kush v. Lloyd, 616 So.2d 415 (Fl. 1992). Accordingly, Parham s contention that the repose time period was extended or tolled by his petition pursuant to Section , Florida Statutes (1989) or his service of a Notice of Intent to Initiate Litigation as required by Section , Florida Statutes (1989) cannot be sustained. Page 10

11 ARGUMENT THE TRIAL COURT PROPERLY DISMISSED PARHAM S AMENDED COMPLAINT AND CAUSE OF ACTION AS BARRED BY THE EXPIRATION OF THE STATUTE OF REPOSE CONTAINED IN FLORIDA STATUTES SECTION 95.11(4)(b) AND CONCLUDING THAT 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) Section 95.11(4)(b), Florida Statutes (1989) provides: 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. (Emphasis added.) In the instant matter, it is undisputed by Parham but that the last medical treatment which forms the basis of this lawsuit occurred on January 29, 1991 and that it is on that date the medical malpractice statute of repose, the language set out in bold above, commenced to run. Accordingly, if Parham intended to sue Sutterlin litigation was required to be initiated no later than January 29, As noted previously, suit was not filed as to Sutterlin until September 1, 1995, nearly seven (7) months beyond the expiration of the repose time period. To avoid this result, Parham contends that the repose time period was extended or Page 11

12 tolled by his petition pursuant to Section , Florida Statutes (1989) 2 and/or his service of a Notice of Intent to Initiate Litigation pursuant to Section , Florida Statutes (1989). 3 Such an argument cannot be sustained as it is in express and direct conflict with a number of decisions of this Court on the same question of law. Parham s argument incorrectly presumes that the terms statute of limitations as used in Sections (2) and (4), Florida Statutes (1989) and a statute of repose mean and are the same thing such that they can be used interchangeably. This Court rejected such a proposition in its decision in the case of Kush v. Lloyd, 616 So.2d 415 (Fl. 1992) wherein it stated: There is considerable misunderstanding of the relationship between statutes of limitations and statutes of repose. A statute of limitations begins to run upon the accrual of a cause of action except where there are provisions which defer the running of the statute in cases of fraud or where the cause of action cannot be reasonably discovered. On the other hand, a statute of repose, which is usually longer in length, runs from the date of a discrete act on the part of the defendant without regard to when the case of action accrued. This was explained by W. Page Keeton et al., Prosser and Keeton on the Law of Torts section 30, at 168 (5th ed. 1984), as follows: A statute of repose generally begins to run at an earlier date and runs for a longer period of time than the otherwise applicable statute of limitations unaffected by the discovery accrual rule. Repose statutes may begin to run from the time of the defendant s s act or neglect, as is the medical malpractice context, or upon the occurrence of a specific and identifiable event shortly thereafter--as from the substantial 2 Which provides in pertinent part: Upon petition to the Clerk of the Court where the suit will be filed... an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). (Emphasis added.) 3 Which provides in pertinent part:... during the 90-day period, the statute of limitations is tolled as to all potential defendants. (Emphasis added.) Page 12

13 completion of the structure, in actions against architects and contractors, or from the manufacture or sale of the product, in products liability cases. Statutes of repose by their nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists, and their constitutionality has been challenged on a variety of state and federal grounds. (Footnotes omitted in original.) 4 In the earlier case of University of Miami v. Bogorff, 583 So.2d 1000 (Fl. 1991) this Court had reached a similar conclusion stating: In contrast to a statute of limitation, a statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or completion of improvements, rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued. (Citations omitted.) 5 In support of his contention that the statute of repose was somehow extended or expanded by the petition pursuant to Section , Florida Statutes (1989) or the service of a Notice of Intent to Initiate Litigation as required by Section , Florida Statutes (1989) Parham will cite the Second District Court of Appeal s decisions in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fl. 2d DCA 1991) and Wood v. Frasier, 677 So.2d 15 (Fl. 2d DCA 1996). In Moore and Wood the Second District held that the statute of repose was tolled by the service of a notice of intent to initiate litigation. The Moore 6 decision was based upon the presumption that a statute of limitations and a statute of repose are the same thing and, therefore could be used interchangeably as if the words So.2d at So.2d at The decision in Wood was essentially based on that court s earlier decision in Moore. Page 13

14 were synonyms for one and other. The quoted language from Kush makes clear that such a proposition is incorrect and, in turn, implicitly, if not expressly, overrules the Second District Court s decisions in Moore and Wood. As a result, it can no longer be considered good law or form the basis for the reversal of the trial court s order of dismissal. Judge Fulmer acknowledged this point in her concurring opinion below stating: Categorizing the statute of repose as an outer time limit is inconsistent with a conclusion that this time limit is automatically extended or tolled by circumstances which extend or toll the statute of limitation. Therefore, while the Supreme Court was never called upon in any of these cases to expressly address the tolling or extension of the statute of repose period, it seems clear to me that underlying the court s analyses was the assumption that the repose period ran without interruption from the day of the malpractice incident until the expiration of the statutory period without regard to the statute of limitations. 7 In ruling as it did the Second District Court of Appeal ignored the fundamental and well established principle, as expressed by this Court in several cases, that a statute of repose is not subsumed in the general term statute of limitations. Judge Fulmer acknowledged as much at several points in her concurring opinion in this matter stating: 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 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 and 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 7 22 FLW at D2615. Page 14

15 statute of limitations, until it expires either four or seven years later, thereby barring any action not yet filed. (Footnote omitted.) 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. * * * * 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 right of action after a specified period of time without regard to when the cause of action accrued, and begins to run from the date of a discrete act on the part of the defendant. It, therefore, essentially creates in those protected a substantive right to be free from liability after a legislatively determined period of time. 8 In other words, the terms statute of limitations as used in Sections (2) and (4), Florida Statutes (1989) and a statute of repose do not mean the same thing such that they can be used interchangeably. Such a result is further mandated by the clear and plain language of the applicable statutes which expressly provide that they are effective to extend only the two year statute of limitations generally applicable to medical malpractice actions. Nowhere do these statutes make any reference to extending the four-year statute of repose time period. The doctrine of statutory construction inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another) holds that where a law or statute expressly describes a particular situation to which it shall apply, an irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded. With respect to Sections and , the specific inclusion of the statute of limitations and their silence 8 Id. At D2614. Page 15

16 with respect to the statute of repose clearly establishes that they were intended to apply only to the former. In other words, the filing of a petition pursuant Section or the service of a notice of intent pursuant to Section are effective only to extend the statute of limitations and have no effect on the statute of repose time frame. This result is consistent with that part of Section 95.11(4)(b), Florida Statutes (1989) which provides: 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. (Emphasis added.) Parham s suggestion that the filing of a petition for extension or the service of a notice of intent can expand the statute of repose time period by an additional three months 9 directly conflicts with the emphasized language which requires an action medical malpractice to be in no event commenced later than four years from the date of the incident or occurrence out of which it accrued. In fact, in a series of cases this Court has rejected a number of different attempts to extend the repose time period and repeatedly held that the repose bars any and all claims brought more than four (4) years after the actual incident, even for acts of negligence that could not reasonably have been discovered within this period of time. 10 See, e.g., Carr v. Broward County, 541 So.2d 92 (Fl. 1989); University of Miami v. Bogorff, 583 So.2d 1000 (Fl. 1991); and Kush v. Lloyd, 616 So.2d 415 (Fl. 1992). 9 In reality,an additional six months as the extensions referenced in the cited statutes run consecutive to the other. 10 The district courts have done likewise. See, e.g., Padgett v. Shands, 616 So.2d 467 (Fl. 1st DCA 1993); Dampf v. Furst, 624 So.2d 368 (Fl. 3d DCA 1993). Page 16

17 In Carr the parents of a brain damaged child brought suit nearly ten years after the child s birth alleging medical malpractice. The Florida Supreme Court found the claim barred by the expiration of the repose period notwithstanding the parents contention that despite due diligence they had been unable to discover the facts and circumstances surrounding the prenatal and obstetrical care rendered during birth. In University of Miami v. Bogorff the parents of a brain damaged child brought suit in December 1982 alleging medical negligence which occurred, if at all, in the mid and late 1970s. The parents alleged that fraudulent concealment by one of the defendants had prevented them from learning of the negligence and the potential cause of action. Nonetheless, the Florida Supreme Court found the claim barred by the repose period of Section 95.11(4)(b). In the Kush v. Lloyd case, the Supreme Court found that the parents of a child born with a genetic impairment were barred by the Statute of Repose from bringing a lawsuit for medical negligence some seven (7) years after the alleged misdiagnosis of the genetic defect despite the fact that their second child was not born until December 24, 1983, the earliest date on which their cause of action could have accrued and the parents have knowledge of the negligence, and suit filed on December 24, In doing so, the Court cited as an example of the proper application of the statute of repose the decision of Carr v. Broward County, 505 So.2d 568 (Fl. 4th DCA 1987) approved, 541 So.2d 92 (Fl. 1989), wherein the Fourth District Court of Appeal stated:... The period of time established by a Statute of Repose commences to run from the date of the event specified in the Statute, such as delivery of goods, closing of real estate sales, or the performance of a surgical operation. At Page 17

18 the end of the time period, the cause of action ceases to exist. 11 The Supreme Court went on to state: Because its application has the potential, as in this case, of barring a cause of action before it accrues, Florida has enacted few statutes of repose. However, the 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. Once we determined that the statute was constitutional, our review of its merits was complete. This Court is not authorized to second-guess the legislature s judgment. 12 This Court recently affirmed the concept that a statute of limitations operates differently than a statute of repose in its decision in Damiano v. McDaniel, 689 So.2d 1059 (Fl. 1997). There this Court answered in the negative the certified question: Is the medical malpractice statute of repose unconstitutionally applied, as a violation of Article I, Section 21 of the Florida Constitution, in barring an action for medical malpractice where the injury, resulting in AIDS, does not manifest itself within the statutory four year term from the date of the incident resulting in the subsequent infection? The facts involved were that the Plaintiff had received a blood transfusion in June She subsequently tested positive for HIV in April 1990, by which time she had also infected her husband. Suit was filed in 1992 against the Plaintiff s physician and the blood center which had provided the blood which had been transfused. The trial court entered summary judgment finding the action barred by the statute of repose. The Fourth District Court of Appeal affirmed but certified the question set out above. This Court concluded the 11 Carr v. Broward County, 505 So.2d 568, 570 (Fl. 4th DCA 1987) So.2d at 422. Page 18

19 question had been previously answered adversely to the Plaintiffs by its prior decisions in Carr, Bogorff, and Kush. In doing so it commented: While the Damianos cause of action for purposes of statute of limitations would not have accrued until they learned that Mrs. Damiano was HIVpositive, their suit was nevertheless barred by operation of the statute of repose, which began to run with the alleged incident of malpractice. 13 The decisions of this Court in the Carr, Bogorff, and Kush cases make it clear that there are no circumstances under which the statute of repose can be extended. Consequently, Parham s argument to the contrary is in direct conflict with these decisions. Such a conclusion is also consistent with the concept, as noted by Judge Fulmer in the lower court and recognized by this Court, that the statute of limitations and the statute of repose operate independent of one and other. This provides additional support for the rule that one cannot be subsumed in the other. In fact, in Tanner v. Hartog, 618 So.2d 178 (Fl. 1993) this Court declared as much stating: We note, however, that by virtue of our recent decision in Kush v. Lloyd, the statute of repose requires that suit be brought in any event within four years of the date the medical negligence occurred, except in cases of fraudulent concealment. Because in most instances the date upon which the medical negligence occurred will be undisputed, the application of the statute of repose will generally be a matter of law. 14 This language is yet another declaration by this Court in an effort to give meaning and effect to that part of Section 95.11(4)(b) which provides 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 cited cases clearly dictate that there be a strict following So.2d at So.2d at 182. Page 19

20 of the statute of repose. In other words, that four years from the date of the incident means four years from the date of the incident. Not four years and seven months as suggested by Parham. In conclusion, it is clear that Parham s lawsuit was untimely brought against Sutterlin as suit was filed more than four years from the date of the incident or occurrence out of which the cause of action accrued. Accordingly, the trial court acted correctly in dismissing Parham s amended complaint and the decision of the Second District Court of Appeal should be reversed, the certified question answered in the negative and the trial court s order reinstated and affirmed by this Court. Page 20

21 CONCLUSION WHEREFORE, based upon the above cited authorities and argument, Appellees, CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D., P.A., would request that this Court enter an order finding the trial court acted correctly in dismissing Parham s amended complaint, reversing the decision of the Second District Court of Appeal, answering the certified question in the negative and reinstating and affirming the trial court s order of dismissal. MARTIN B. UNGER, ESQUIRE Florida Bar No.: BRIAN D. STOKES, ESQUIRE Florida Bar No.: UNGER, SWARTWOOD, LATHAM & INDEST, P.A. 701 Peachtree Road ( ) Post Office Box 4909 Orlando, Florida (407) Attorneys for Petitioners, CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D. P.A. Page 21

22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy hereof has been furnished by U.S. Mail delivery to William J. Terry, Esquire, Terry & Dittmar, 101 E. Kennedy Blvd., Suite 2560, Tampa, Florida ; Glenn M. Burton, Esquire and Thomas M. Hoeler, Esquire, Shear, Newman, Hahn & Rosenkranz, P.A., Post Office Box 2378, Tampa, Florida 33601, and Clifford L. Somers, Esquire, 3242 Henderson Blvd., Suite 301, Tampa, Florida 33609, this 30th day of March, MARTIN B. UNGER, ESQUIRE Florida Bar No.: BRIAN D. STOKES, ESQUIRE Florida Bar No.: UNGER, SWARTWOOD, LATHAM & INDEST, P.A. 701 Peachtree Road ( ) Post Office Box 4909 Orlando, Florida (407) Attorneys for Petitioners, CHESTER E. SUTTERLIN, III, M.D. and CHESTER E. SUTTERLIN, III, M.D. P.A. Page 22