Hankey v. Yarian

755 So. 2d 93, 2000 WL 283692
CourtSupreme Court of Florida
DecidedMarch 16, 2000
DocketSC 94384
StatusPublished
Cited by25 cases

This text of 755 So. 2d 93 (Hankey v. Yarian) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hankey v. Yarian, 755 So. 2d 93, 2000 WL 283692 (Fla. 2000).

Opinion

755 So.2d 93 (2000)

Patricia Ann HANKEY, et al., Petitioners,
v.
Susan YARIAN, M.D., et al., Respondents.

No. SC 94384.

Supreme Court of Florida.

March 16, 2000.

*94 Charles Daniel Sikes and Thomas F. Nordlie, Starke, Florida, for Petitioners.

H. Joseph McGuire and M. Kathleen Roddenberry of Smith, Schoder & Roddenberry, P.A., Daytona Beach, Florida; Kurt M. Spengler and Michael R. D'Lugo of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Orlando, Florida; Lee W. Marcus, Terese M. Latham and Martin B. Unger of Unger, Swartwood, Indest & Acree, P.A., Orlando, Florida, for Respondents.

ANSTEAD, J.

We have for review Hankey v. Yarian, 719 So.2d 987 (Fla. 5th DCA 1998) based on certified direct conflict with the decision in Rothschild v. NME Hospitals, Inc., 707 So.2d 952 (Fla. 4th DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we quash Hankey and approve Rothschild.

At issue is the calculation of the statutory time limitations for filing a medical malpractice action under chapter 766 of the Florida Statutes. Specifically, the question is whether the ninety-day "tolling" period under section 766.106(4), Florida Statutes, plus any other extension agreed to by the parties as provided for under that subsection, suspends the running of the two-year statutory limitation period for filing suit. In Hankey, the Fifth District held that the statutory limitations period was not suspended during the tolling period provided for in section 766.106(4). In Rothschild, the Fourth District held that the running of the limitations period was suspended. We conclude that the tolling period provided by section 766.106(4) does interrupt and suspend the running of the limitations period. Therefore, we approve Rothschild and disapprove Hankey.

The trial court dismissed the complaint of Patricia Ann and Donald Hankey, finding it was not timely filed, and the district court affirmed. See Hankey, 719 So.2d at 988. The district court in Hankey relied on Pergrem v. Horan, 669 So.2d 1150 (Fla. 5th DCA 1996), wherein three years after our decision in Tanner v. Hartog, 618 So.2d 177 (Fla.1993), the Fifth District concluded that under section 766.106(4), "if the notice of intent is mailed well in advance of the end of the statute of limitations period, so that the ninety days and sixty days fall within it, the claimant must file suit before the [original two-year] statute of limitations runs." Id. at 1151. We find error in this interpretation of Tanner by Pergrem and Hankey. Further, applying the method of calculation set out herein to the facts of this case, we find that the Hankeys' complaint was timely filed and therefore quash the ruling below.

MEDICAL MALPRACTICE STATUTORY SCHEME

We begin with a review of the medical malpractice statutory scheme and its purpose, both of which directly affect the resolution of this case. It appears that the Legislature adopted the presuit procedures of chapter 766 based upon a concern about the perceived increase in the amount of medical malpractice claims paid and a perceived corresponding increase in malpractice liability insurance premiums. See § 766.201(1)(b), Fla. Stat. (1997). In section 766.201(2), the Legislature expressly states it was their intent "to provide a plan for prompt resolution of medical negligence claims." Courts have often characterized the legislative intent of the medical malpractice statutory scheme as promoting the "settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding." Cohen v. Dauphinee, 739 So.2d 68, 71 (Fla.1999) (quoting Williams v. Campagnulo, 588 So.2d *95 982, 983 (Fla.1991); see also Patry v. Capps, 633 So.2d 9, 11-12 (Fla.1994)). A key aspect of this statutory scheme is the promotion of settlement options and negotiations between the parties out of court. The provisions for tolling and extending the limitations period are part of this scheme.

LIMITATIONS SCHEME

Pursuant to section 95.11(4)(b), Florida Statutes (1997), an action for medical malpractice must 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, before a claimant can file a medical malpractice suit, chapter 766 prescribes a number of requirements and provisions which seek to enhance the prospect of a settlement, and which affect the running of the limitations period.

First, a claimant must conduct a reasonable investigation to determine if there are grounds for a good faith belief that there was negligence in his care or treatment. See § 766.104(1), Fla. Stat. (1997). After the completion of this presuit investigation, and during the two-year period provided for in section 95.11(4)(b), the claimant must serve a notice of intent to initiate litigation to each prospective defendant. See § 766.106(2), Fla. Stat. (1997). Importantly, as it relates to the limitations issue before us, no suit may be filed for a period of ninety days after this notice of intent is mailed to any prospective defendant.[1]See § 766.106(3)(a), Fla. Stat. (1997). In this regard, section 766.106(4) provides:

[D]uring the 90-day period, the statute of limitation is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.[2]

Finally, by filing a petition to the clerk of the circuit court, a claimant is entitled to an automatic ninety-day extension to the statute of limitations. See § 766.104(2), Fla. Stat. (1997). All of these provisions impact the running of the limitations period, and appear designed to facilitate negotiations between the parties.

CALCULATING THE TIME LIMITATIONS

Initially, the claimant, Patricia Hankey, maintains that the use of the word "tolled" in section 766.106(4) means that the two-year statute of limitations is suspended during the ninety-day period and during any other agreed extension. She maintains that an alternative reading of that statutory provision will effectively and substantially reduce the statutory limitations period in medical malpractice cases. On the other hand, the respondents urge us to find that the statute only has the limited application discussed in Pergrem; or, alternatively, that the word "toll" means only "to bar."[3] Therefore, *96 the respondents maintain that the statute simply provides that a claimant is barred from filing suit during this period, but the time that passes during this time period is still to be counted against the two years allowed for bringing suit.

PLAIN MEANING

It has long been a rule of statutory construction that statutes must be given their plain and obvious meaning and courts should assume that the legislature knew the plain and ordinary meaning of words when it chose to include them in a statute. See Aetna Cas. & Surety Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992); Thayer v. State, 335 So.2d 815, 817 (Fla.1976); Sheffield v.

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755 So. 2d 93, 2000 WL 283692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hankey-v-yarian-fla-2000.