*-
I
No. 70.545
ELLEN M. CARR, et al., Petitioners,
vs.
BROWARD COUNTY, etc., e t al., Respondents.
[March 16, 1 9 8 9 1
OVERTON. J.
This cause is before t h e Court on petition for review of t h e Fourth District Court of Appeal's decision in
Carr
v. Rroward County,
505 So. 2d 568 (Fla. 4th BCA 1987). The Fourth District found Carr's medical malpractice action, filed more than nine years a f t e r rbe alleged incident causing brain damage t o her newborn child, w a s barred by t h e statute of repose provisions contained in section 95.11(4)(b), Florida S t a t u t e s (1975). In so holding, the district court acknowledged conflict with v. Hanft, 471 So. 2d 648 (Fla. 3d DCA 1985),dismissed
,
488 So. 2d 531 (Fla. 1986). We have jurisdiction. Art. V, g 3(b)(3), Fla. Const. We approve t h e instant decision anddisapprove Phelan.
motion t o dismiss, applying section 95.11(4)(b). Section 95.11(4)(b), Florida S t a t u t e s (1975), reads in pertinent part:
(b) An action for medical malpractice shall be commenced within 2 years from t h e time t h e incident giving rise t o t h e action occurred or within 2 years from t h e time the incident is discovered, o r should have been discovered with t h e exercise of due diligence; however, in no event shall t h e action be commenced l a t e r than 4 years from the d a t e of t h e incident
or
occurrence out of which the cause of action accrued. An "action for medical malpractice" is defined as a claim in t o r t or in contract for damages because of t h e death, injury, or monetary loss t o any person arising out of any medical, dental, or surgical diagnosis, treatment, orcare
by any provider of health care. The limitation of actions within this subsection shall be limited t o the health-care provider and persons in privity with t h e provider of healthcare.
In those actions covered by this paragraph in which it can b e shown t h a t fraud, concealment, o r intentional misrepresentation of f a c t prevented t h e discovery of t h e injury within the 4-year period, t h e period of limitations is extended forward 2 years from t h e time t h a t the injury is discovered or should have been discovered with t h e exercise of due diligence, but in no event t o exceed 7 years from the d a t e t h e incident giving rise t o the injury occurred.This statutory section prescribes (1) a s t a t u t e of limitations of two years; (2) a s t a t u t e of repose of four years absent fraud or intentional misconduct; and (3) a s t a t u t e of repose of seven years where t h e r e is an allegation t h a t fraud, concealment, or intentional misrepresentation of f a c t prevented discovery of the negligent conduct
.
On appeal, t h e Fourth District determined t h a t t h e brain damage injury t o t h e C a r r infant was a completed f a c t at t h e time of birth and t h e cause of action w a s permanently barred a f t e r September, 1982, by t h e seven-year statute of repose provision contained in section 95.11(4)(b). The court applied W v e r v, White, 281 So. 2d 1 (Fla. 1973), determining the legislature had found overpowering public necessity for the legislation and t h e Carrs w e r e not unconstitutionally denied access t o courts guaranteed by article I, section 21, Florida Constitution. The court, in so holding distinguished this case from the product liability s t a t u t e , stating:
Unlike t h e products liability s t a t u t e of repose, (section 95.031(2), under which, where fraud is involved, t h e period runs from "the d a t e of t h e commission of t h e alleged fraud") t h e
incident
af
malDractice
begins t h e period of repose in a medical malpractice case despite fraudulent concealment. Whether public policy supports such a distinction is a m a t t e r for t h e legislature, not this court, t o determine.The medical malpractice s t a t u t e of repose had its genesis in section 7 of Chapter 75-9, Laws of Florida, t h e Medical Malpractice Reform A c t of 1975. The public necessity for t h e statutory reform embodied in the act was expressed by t h e legislature in t h e preamble
as
follows:WHEREAS, the consumer ultimately must bear t h e financial burdens c r e a t e d by t h e high
cost
of insurance; andWHEREAS, without some legislative relief, doctors will be forced t o curtail their practices, retire, o r practice defensive medicine at increased cost t o t h e citizens
of
Florida; andWHEREAS, t h e problem has reached crisis proportion in Florida, NOW THEREFORE,
. . . .
W e here determine, subject t o supreme court scrutiny in this or a l a t e r appropriate case, t h a t t h e legislature has established an overriding public interest meeting t h e
Klueer
test as applied in Overland and t h a t the s t a t u t e was therefore validly applied t o the Carr's [sicl causes of action by t h e trial court.x
Lkx,
505 So. 2d at 575 (emphasis in original).In
m,
the Third District adopted a contrary view, holding t h a t "where t h e record does not conclusively show t h a t t h e alleged medical malpractice was or should have been discovered within four years of its commission, the plaintiff's action, although brought a f t e r t h e expiration of the four-year s t a t u t e of repose, is not barred asa
m a t t e r of law." 471 So. 2d a t 648-49. The Third District reversed and remanded the cause for a determination of whether, if t h e plaintiff did not o r should not have discovered t h e cause of action, t h e s t a t u t e of repose would bar her action and unconstitutionally deny her access t o courts. That court did not address whether t h e legislature had established an overriding public interest in accordance with t h eU g e r
test.In
-,
w e specifically addressed t h e issue of whether the constitutional guarantee of a "redress of any injury" contained in article I, section 21, bars t h e statutory abolition of an existing civil remedy. We stated:[Wlhere a right of access t o t h e courts for redress for
a
particularly injury has been provided by statutory law predating the adoption of t h e Declaration of Rights of the Constitution of the State of Florida, o r where such right has become a p a r t of t h e common law of t h e State pursuant to Fla. Stat. fj 2.01, F.S.A., t h e Legislature is without power to abolish sucha
right without providing a reasonable alternative t o p r o t e c t t h e rights of t h e people of t h e State t o redress for injuries, unless t h e Legislature can show an overpowering public necessity for t h e abolishment of such right, and no alternative method of meeting such public necessity can be shown.281 So. 2d at 4.
:I:
Following its decision in
k,
t h e Fourth District concluded t h a t the medical malpractice crisis extended t o dentists and included dentists within the purview of the Medical Malpractice Reform Act.&
Shields v. Buchholz, 515 So. 2d523 So. 2d 578 (Fla. 1988). 1379 (Fla. 4th DCA 1987), review
dlsmlssed,
.
.
In a series of subsequent cases, we considered t h e legislative authority t o restrict or limit actions by s t a t u t e s of repose.
SX.
Melendez v. Dreis,
476 m pMfe
Co,, 515 So. 2d 735 (Fla. 1987);Pullum
v. C i n w u a t i .h
!
&
,
475U.S.
1114 (1986);Battilla
v.
A USo.
2d 657 (Fla. 19851,aDrJeal
i&aumed
-rs
M f g . c/o,, 392 So. 2d 874 (Fla. 1980);3
Mfv Co,, 369 So. 2d 572 (Fla. 1979). In
lhllum,
we recognized t h a t s t a t u t e s of repose are a valid legislative means t o restrict or limit causes of. .
.
.
action in order
to
achievecertain
public interests.Pullum
concerned the s t a t u t e of repose for actions for products liability and fraudas
set forth in section 95.031(2), Florida S t a t u t e s (1979). W e held t h a t s t a t u t e did not unconstitutionally violate t h e access-to-courts provision of article I, section 21, of the Florida Constitution, o r t h e principles enunciated in-,
noting:The legislature, in enacting this s t a t u t e of repose, reasonably decided t h a t perpetual liability places an undue burden on manufacturers, and it decided t h a t twelve years from the d a t e of sale is a reasonable time for exposure t o liability for manufacturing of a product.
476 SO. 2d at 659. In
Pullum,
w e receded fromBattilla
v. Allisc/halmers
v -Co,,
392 So. 2d 874 (Fla. 1980), which had held t h a t section 95.031,as
appliedin a
products liabilityaction,
unconstitutionally deniedaccess
t o courts. We concluded t h a t section 95.031 w a s constitutional even as applied t o causes of action which had not accrued until a f t e r t h e twelve-year s t a t u t e of repose had expired. W e recently held t h a tPullurn
applied retrospectively t o bar causes of action which accrued a f t e rBattilla
but beforePullurn.
Seg Melendez
v.nreis
md-pMfv
Co,,
515 So. 2d 735 (Fla. 19871,dlsmlssed
,
475 U.S. 1114 (1986)..
.
95.11(4)(b was properly grounded on an announced public necessity and no less stringent measure would obviate t h e problems the legislature sought t o address, and thus the s t a t u t e does not violate t h e access-to-courts provision.
Accordingly, we approve t h e decision of t h e Fourth District and disapprove the Third District's decision in
B.
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
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
KOGAN,
J., dissenting.
I
respectfully dissent.
I would adopt the opinion of the
Third Distrist 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 article
I,
section
21
of the Constitution
of
the
State
of
Florida.
SHAW and BARKETT, J J . , Concur
Application for Review of the Decision of the District Court
of Appeal
-
Certified Direct Conflict of Decisions
Fourth District
-
Case No.
8 5 - 2 6 9 0 , 8 5 - 2 8 2 0and
4 - 8 6 - 0 2 0 9
