STEMERMAN, LAZARUS, SIMOVITCH, BILLINGS, FINER & GINSBURG, M.D.'S P.A., A FLORIDA CORPORATION, D/B/A SOUTH FLORIDA PEDIATRIC PARTNERS, MICHAEL FINER, M.D., JUDITH LEDERHANDLER, M.D., PETITIONERS,
v.
TRISHA FUERST, INDIVIDUALLY AND ON BEHALF OF RYAN FUERST, A MINOR, MIMI ABELLA-BLANCO, M.D., SUSAN LEITNER, M.D., ROBERT PERELLO, M.D., AMADA ROMANO-SILVA, M.D., MIAMI PEDS, INC., A FLORIDA CORPORATION, RESPONDENTS

Fla. 3d DCA | 2009-02-18
No. 3D08-2113
Before COPE, RAMIREZ, and SALTER, JJ.
4 So. 3d 55 Florida District Court of Appeal, Third District (2009) Positive Treatment
Cited by 8 cases

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Synopsis

Pediatric medical malpractice case where the trial court denied a motion to dismiss based on statute of limitations grounds. The appellate court dismissed the certiorari petition for lack of jurisdiction, holding that statute of limitations defenses are not properly reviewable by certiorari but rather on summary judgment.


Holding

Certiorari review does not lie to review the denial of a motion to dismiss based on statute of limitations grounds. The statute of limitations issue, even when potentially intertwined with pre-suit notice requirements, is an issue appropriately raised upon summary judgment and not suitable for certiorari review.


Headnotes

[1] Certiorari review does not lie to review the denial of a motion to dismiss based upon a statute of limitations defense.

[2] A statute of limitations defense is an issue appropriately raised upon a motion for summary judgment, not one suitable for certiorari review.

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Key Quotes

“We dismiss the petition because we lack jurisdiction to review the denial of a motion to dismiss based upon a statute of limitations defense.”

Establishes the core holding that statute of limitations defenses are not reviewable via certiorari on a motion to dismiss.

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Facts & Procedural History

Trisha Fuerst brought a medical malpractice suit on behalf of her minor son, Ryan, against various pediatricians including Dr. Michael Finer and other…

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Opinion of the Court
RAMIREZ, J.

RAMIREZ, J.

Stemerman, Lazarus, etc., et al., petition this Court for a writ of certiorari to review an order that denied their motion to dismiss the Amended Complaint on the grounds that the applicable statute of limitations period barred the claims raised in the Amended Complaint. We dismiss the petition because we lack jurisdiction to review the denial of a motion to dismiss based upon a statute of limitations defense.

Respondent, Trisha Fuerst, brought the underlying medical malpractice suit on behalf of her son. She brought suit against various medical providers, all of whom allegedly failed to timely diagnose the presence of a cyst in the boy’s brain which caused the boy to suffer from tremors/shaking hands.

In the Amended Complaint, Fuerst alleged that Dr. Michael Finer examined the boy on January 18, 2002, and diagnosed him with a benign tremor of the hands. Fuerst also alleged that she continued to have her son examined by other doctors, including other named defendants, through December of 2003. She alleged that between January 2002 and December 2003, none of the defendant physicians ever diagnosed, tested, and ruled out or referred the boy to establish the presence of the cyst. She further alleged that on January 6, 2004, a pediatric neurologist ordered an MRI of the brain. He ultimately diagnosed the presence of the cyst.

Fuerst served a Notice of Intent to Initiate Litigation for Medical Malpractice on November 6, 2007. She filed suit in March of 2008. At that time, the boy was seven years old.

South Florida Pediatric Partners, Dr. Finer, and Dr. Lederhandler moved to dismiss the Amended Complaint. They argued, among other things, that the respondents’ failure to timely initiate the claim *57within the applicable two-year statute of limitations period required dismissal of the Amended Complaint.

Petitioners argued that, even if you were to assume that they had sought the 90-day automatic extension permitted by section 766.104(2), Florida Statutes, Trisha Fuerst was nowhere close to timely initiating pre-suit in November of 2007. The respondents argued that the normal two-year statute of limitations, that would have been applicable if the boy was an adult, did not apply because he is a child. Because the Notice of Intent and the lawsuit were filed when the boy was seven years of age, and thus before his eighth birthday, the suit was timely filed as a matter of law.

The trial court denied the motion to dismiss holding that the face of the Amended Complaint established that the lawsuit was timely filed since the parties brought suit before the boy’s eighth birthday.

The parties agree with the general proposition that certiorari review does not lie to review the denial of a motion to dismiss based upon a statute of limitations defense. See Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1085-86 (Fla. 5th DCA 2007) (holding that prohibition was not available to review the trial court’s order that rejected an affirmative defense based upon the applicable statute of limitations); O’Donnell’s Corp. v. Ambroise, 858 So.2d 1138, 1140 (Fla. 5th DCA 2003) (holding that the appellate court lacked jurisdiction to review the denial of a motion to dismiss based upon a statute of limitations defense by either a writ of cer-tiorari or a writ of prohibition); Panaga-Icos v. Laufer, 779 So.2d 296, 297 (Fla. 2d DCA 1999).

The petitioners, however, argue that certiorari review lies here on the basis that the expiration of the statute of limitations period also constitutes a failure to comply with the pre-suit notice requirements of chapter 766, Florida Statutes. Chapter 766 requires plaintiffs in medical malpractice suits to give notice to all prospective defendants of the intent to pursue litigation. See § 766.106(2), Fla. Stat. (2008). Certiorari review is indeed appropriate when chapter 766 pre-suit requirements are at issue. See Okaloosa County v. Custer, 697 So.2d 1297 (Fla. 1st DCA 1997).

We conclude that the issue before this Court is whether the statute of limitations barred the respondents’ cause of action, not the failure to comply with the pre-suit notice requirements. Therefore, this is an issue appropriately raised upon a motion for summary judgment and not one suitable for certiorari review. On this basis, we decline to quash the order denying the respondents’ motion to dismiss and dismiss the petition for writ of certiorari.


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Citator

Cited By

  • …t out. For example, in St. Mary’s Hospital v. Bell, 785 So. 2d 1261 (Fla. 4th DCA 2001), the court held that certiorari does not lie to challenge the sufficiency of the evidence presented in the presuit screening process. And in Stemerman v. Fuerst, 4 So. 3d 55 (Fla. 3d DCA 2009), a case that is even more directly on point, the court held that certiorari does not lie to review the denial of a motion to dismiss a medical malpractice case based on a failure to comply with the statute of limitations contained…
  • Oken v. Williams, 23 So. 3d 140 (Fla. 1st DCA 2009)
    …ue is actually one of general applicability, such as statute of limitations, rather than an issue specifically peculiar to medical malpractice actions. For example, in Stemerman, Lazarus, Simovitch, Billings, Finer & Ginsburg, M.D.’s P.A. v. Fuerst, 4 So. 3d 55, 57 (Fla. 3d DCA 2009), the court noted: The petitioners, however, argue that certiorari review lies here on the basis that the expiration of the statute of limitations period also constitutes a failure to comply with the pre-suit notice requiremen…
  • Adventist Health System/sunbelt, Inc. v. Machalek, 48 Fla. L. Weekly S150 (Fla. 5th DCA 2023)
    …e of action. Certiorari is unavailable to permit our review of the trial court’s denial of Petitioners’ motions to dismiss sounding in the statute of limitations. See Stemerman, Lazarus, Simovitch, Billings, Finer & Ginsburg, M.D.’s P.A. v. Fuerst, 4 So. 3d 55, 57 (Fla. 3d DCA 2009). Just because this affirmative defense is asserted within the context of a medical malpractice case does not render this case as one falling within the exceptions carved out by Florida courts allowing certiorari review with re…

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