ROBERT B. CATES, ETC., ET AL., PETITIONERS,
v.
ORLANDO R. GRAHAM, M.D., ET AL., RESPONDENTS
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The Florida Supreme Court upheld the constitutionality of a medical malpractice statute of repose that imposed a four-year absolute deadline from the date of the negligent act, with a seven-year outside limit even if fraud or concealment delayed discovery. The court rejected the plaintiff's argument that a five-to-six-month window remaining after discovery of the injury effectively denied access to courts.
The statute is constitutional and was constitutionally applied. A statute of repose that merely curtails the time within which suit must be filed does not deny access to the courts, even when only a short period remains after discovery of the injury. The five-to-six-month window available to Cates did not constitute a denial of access to courts.
[1] A statute of repose is constitutional and does not unconstitutionally bar access to the courts when it merely curtails the time within which suit must be filed.
[2] A statute of limitations is constitutional as applied even if it imposes a short time period for bringing an action, provided it does not deny access to the courts.
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Join FLexlaw to unlock all legal intelligence“In Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978), we found constitutional a parallel statute, subsection 95.11(3)(c). In doing so we held that a statute of repose is constitutional and does not bar access to the courts when it merely curtails the time within which suit must be filed, as opposed to barring the cause of action entirely.”
Establishes the legal standard distinguishing permissible limitations periods from unconstitutional barriers to access.
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Join FLexlaw to unlock all legal intelligenceDr. Graham operated on Robert Cates to remove broken glass from his foot on July 4, 1975. The operation appeared successful initially, but in December…
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McDONALD, Justice.
We accepted this case for review because the decision of the district court, Cates v. Graham, 427 So. 2d 290 (Fla. 3d DCA 1983), passed upon the constitutionality of subsection 95.11(4)(b), Florida Statutes (1977), thereby giving us jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We hold that the statute is constitutional and was constitutionally applied, and we approve the opinion of the district court.
Graham operated on Cates to remove broken glass from his foot. His last treatment occurred on July 4, 1975. Cates’ recovery and healing were uneventful until December of 1978 when he felt discomfort in the foot. On January 18, 1979 he learned that a piece of glass still remained in his foot. This was surgically removed on February 9, 1979, some three years, seven months from the original alleged negligent act of failing to remove all of the glass. He filed an action on this claim on January 9, 1980, four and one-half years after his initial treatment.
Subsection 95.11(4)(b), Florida Statutes (1977), effective for those proceedings, provides:
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 diligence; 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.... 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.
(Emphasis supplied.) The real question is whether a five-to six-month period remaining after the discovery of any injury is so short that to enforce the terms of the statute would result in a denial of access to the. courts and hence make subsection 95.-ll(4)(b) unconstitutional as applied.
In Bauld v. J.A. Jones Construction Co., 357 So. 2d 401 (Fla.1978), we found constitutional a parallel statute, subsection 95.11(3)(c). In doing so we held that a statute of repose is constitutional and does not bar access to the courts when it merely curtails the time within which suit must be filed, as opposed to barring the cause of action entirely. Accord Purk v. Federal Press Co., 387 So. 2d 354 (Fla.1980).
Cates and the dissenting judge from the third district urge that a five-to six-month limitation on bringing an action is tantamount to no right at all. Admittedly, this is a short period; however, we cannot say that Cates was denied access to the courts by the time constraints. Therefore, the statute is constitutional as applied. We approve the decision of the district court.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Univ. OF Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991)…uld be applied to a triggering incident which occurred before the effective date of the statute, provided that the plaintiff had a reasonable time remaining to bring suit. Bauld; Purk v. Federal Press Co., 387 So. 2d 354 (Fla.1980); Cates v. Graham, 451 So. 2d 475 (Fla.1984). The Bogorffs had over three years before the repose statute barred their claim and seven to eight months after the statute’s effective date in which to bring their suit. Thus, they had a reasonable time to file their complaint, and, by n…
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Carr v. Broward Cnty., 505 So. 2d 568 (Fla. 4th DCA 1987)…er the fact pattern involved in Diamond, the legislature could ever bar the right by an appropriate showing of public necessity. An inference that the legislature may not validly do so could be drawn from the court’s discussion. In Cates v. Graham, 451 So. 2d 475 (Fla.1984), involving application of the four-year medical malpractice statute of repose contained in subsection 95.11(4)(b), Florida Statutes (1977), the court held that a five to six-month limitation on bringing an action does not impermissibly de…
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Magda Menendez and Americo Menendez v. Pub. Health Tr. OF Dade Cnty., 566 So. 2d 279 (Fla. 3d DCA 1990)…n for an additional two months. Under the circumstances, the trial court did not err in applying the statute of repose contained in section 95.11(4)(b) to bar plaintiffs’ action. Cates v. Graham, 427 So. 2d 290 (Fla. 3d DCA 1983), decision approved, 451 So. 2d 475 (Fla.1984); Pisut. [*282] As to Jackson, however, we hold that the trial court erred in applying the provisions of section 95.11(4)(b). Section 768.28(11), Florida Statutes (Supp.1980), which provides a four-year limitation without a period of repos…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bauld v. J. A. Jones Constr. Co., 357 So. 2d 401 (Fla. 1978)
- Purk v. Fed. Press Co. & Fla. Mach. Corp., 387 So. 2d 354 (Fla. 1980)
- Cates v. Orlando R. Graham, M.D., Ponder & Assocs. Emergency Physicians, P.A., 427 So. 2d 290 (Fla. 3d DCA 1983)