SANDRA SANTIAGO AND NORMA CACERES, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF RAMONA REYES v. FRANCISCO A. RODRIGUEZ, MD ( 2019 )


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  •               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    SANDRA SANTIAGO and NORMA        )
    CACERES, as personal representatives
    )
    of the Estate of Ramona Reyes,   )
    deceased,                        )
    )
    Appellants,           )
    )
    v.                               )                   Case No. 2D18-3114
    )
    FRANCISCO A. RODRIGUEZ, M.D.,    )
    )
    Appellee.             )
    ________________________________ )
    Opinion filed October 18, 2019.
    Appeal from the Circuit Court for Lee
    County; John E. Duryea, Jr., Judge.
    John N. Bogdanoff, B.C.S. of The
    Carlyle Appellate Law Firm, Orlando,
    and William Powell of Powell, Jackman,
    Stevens & Ricciardi, P.A., Cape Coral,
    for Appellants.
    Isaac R. Ruiz-Carus and Katherine A.
    Gannon of Rissman, Barrett, Hurt,
    Donahue, McLain & Mangan, P.A.,
    Tampa, for Appellee.
    NORTHCUTT, Judge.
    Sandra Santiago and Norma Caceres, personal representatives of the
    Estate of Ramona Reyes, appeal the dismissal of their medical malpractice suit against
    Dr. Francisco Rodriguez. We affirm the dismissal based on the supreme court's holding
    in Mizrahi v. North Miami Medical Center, Ltd., 
    761 So. 2d 1040
     (Fla. 2000), but we
    certify a question of great public importance regarding the present efficacy of that
    decision.
    Santiago and Caceres are the adult surviving children of Ramona Reyes.
    They filed a two-count complaint against Rodriguez in which they alleged that Reyes's
    death was caused by Rodriguez's medical negligence and sought a declaration
    regarding the constitutionality of section 768.21(8), Florida Statutes (2017). That statute
    excludes medical malpractice cases from those in which adult surviving children have a
    statutory right to recover noneconomic damages for the wrongful death of a parent.
    Rodriguez moved to dismiss the complaint on two grounds: that the four-year statute of
    repose applicable to medical malpractice actions under section 95.11(4)(b), Florida
    Statutes (2017), had expired and that the action was barred by section 768.21(8).
    Following a hearing, the circuit court granted the motion and dismissed both counts with
    prejudice.
    The circuit court did not set forth its reasons for the dismissal, but we note
    that Rodriguez's motion to dismiss based on the statute of repose was not well taken.
    Statutes of repose, like statutes of limitations, are affirmative defenses. See Hess v.
    Philip Morris USA, Inc., 
    175 So. 3d 687
    , 695 (Fla. 2015). As such, typically they are
    raised in the answers filed by defendants, who have the burden to prove them. See 
    id.
    at 695–96; Doe v. Hillsborough Cty. Hosp. Auth., 
    816 So. 2d 262
    , 264 (Fla. 2d DCA
    2002). As with other affirmative defenses, a court may grant a motion to dismiss on
    statute of limitations grounds only when the complaint on its face conclusively shows
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    that the action is barred. Hummer v. Adams Homes of Nw. Fla., Inc., 
    198 So. 3d 750
    ,
    752 (Fla. 2d DCA 2016); cf. Paylan v. Dirks, 
    228 So. 3d 679
    , 680 (Fla. 2d DCA 2017)
    (reversing dismissal on sovereign immunity grounds when the complaint did not
    conclusively show that the defendant was entitled to immunity). That was not the case
    here.
    Section 95.11(4)(b) provides that a medical malpractice action must be
    commenced within two years after the incident giving rise to the action or within two
    years after the incident is discovered or should have been discovered with the exercise
    of due diligence. "[H]owever, 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. . . ." 
    Id.
     Santiago and Caceres filed their suit in August 2017, alleging that
    Rodriguez was Ramona Reyes's physician until sometime in 2015 and that he had
    ordered CT scans of her lungs in 2009 and 2013. They attached as exhibits to the
    complaint the radiologist reports reflecting, among other things, the dates on which the
    CT scans were performed. Santiago and Caceres asserted that Rodriguez committed
    malpractice by failing to inform Reyes that the scans disclosed the possibility of a lesion
    in her lung, by failing to order serial CT scans following either scan, by failing to order a
    biopsy following the 2013 scan, and by failing to diagnose Reyes's lung cancer. The
    complaint alleged that the lesion in Reyes's lung became metastatic lung cancer, which
    caused her January 2017 death.
    This court considered materially similar circumstances in Woodward v.
    Olson, 
    107 So. 3d 540
     (Fla. 2d DCA 2013). In that case, the court held that the
    defendant physician's alleged failures in 2002, 2005, and 2008 to inform his patient of
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    the suspicious findings in her chest X-rays or to order follow-up testing recommended
    by the radiologists were discrete incidents of alleged malpractice, each of which was
    subject to its own four-year statute of repose with respect to the patient's suit for
    medical malpractice arising from her subsequent lung cancer diagnosis. 
    Id. at 543
    .
    Notably, the court identified the discrete incident that commenced each repose period
    as the physician's failure to inform the patient of the X-ray results or order follow-up
    testing on the date that he saw her after receiving each radiology report. 
    Id.
     at 543–44.
    In the case before us, the complaint and attachments reflect only the dates on which the
    CT scans were performed. They do not disclose when the alleged incidents of
    malpractice, i.e., the failures to inform Reyes of the scan results or to order follow-up
    tests, took place. As such, the face of the complaint did not conclusively show that the
    action was barred under the statute of repose and dismissal on that ground was not
    supported.
    Vis-a-vis the other issue in this case, Santiago and Caceres maintain that
    the class limitation created by section 768.21(8) violates the equal protection
    guarantees of the Florida and United States constitutions. See amend. XIV, § 1, U.S.
    Const.; art. I, § 2, Fla. Const. In Mizrahi, the supreme court upheld the statute in the
    face of that very argument: "[T]he instant statute which created a right of action for
    many while excluding a specific class from such action, and which exclusion is rationally
    related to controlling healthcare costs and accessibility, does not violate the equal
    protection guarantees of either the United States or Florida Constitutions." 
    761 So. 2d at 1043
    . The court concluded that section 768.21(8)'s limitation on who can recover
    noneconomic damages bore a rational relationship to a legitimate state interest in
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    limiting increases in medical insurance costs, which the legislature found was a
    consequence of an ongoing medical malpractice crisis. 
    Id.
     at 1042–43; see also Univ.
    of Miami v. Echarte, 
    618 So. 2d 189
    , 196–97 (Fla. 1993) (holding that the State has a
    legitimate interest in controlling medical malpractice insurance costs). Given Mizrahi's
    express determination of the issue presented in this case, we are obliged to affirm the
    dismissal.
    However, Santiago and Caceres argue that the Mizrahi holding is no
    longer tenable in light of subsequent supreme court decisions concluding that the
    medical malpractice crisis upon which the statute's validity depended no longer exists.
    First, in a plurality opinion in Estate of McCall v. United States, 
    134 So. 3d 894
     (Fla.
    2014), the court analyzed the constitutionality of a statutory cap on noneconomic
    damages in cases of wrongful death resulting from medical malpractice. The plurality
    examined whether Florida continued to suffer a medical malpractice crisis and
    concluded that evidence of such a crisis was lacking:
    Based upon these statements and reports, although
    medical malpractice premiums in Florida were undoubtably
    high in 2003, we conclude the Legislature's determination
    that "the increase in medical malpractice liability insurance
    rates is forcing physicians to practice medicine without
    professional liability insurance, to leave Florida, to not
    perform high-risk procedures, or to retire early from the
    practice of medicine" is unsupported. Ch. 2003-416, § 1,
    Laws of Fla., at 4035. Thus, the finding by the Legislature
    and the Task Force that Florida was in the midst of a bona
    fide medical malpractice crisis, threatening the access of
    Floridians to health care, is dubious and questionable at the
    very best.
    ....
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    [E]ven if there had been a medical malpractice crisis in
    Florida at the turn of the century, the current data reflects
    that it has subsided.
    Id. at 909–14 (emphasis added). But see id. at 921 (Pariente, J., concurring in result)
    (agreeing with the plurality's conclusion but disagreeing with its process of
    independently reviewing the existence of a medical malpractice crisis: "[O]ur precedent
    does not allow this Court to engage in the type of expansive review of the Legislature's
    factual and policy findings that the plurality engages in when undertaking a
    constitutional rational basis analysis."); id. at 931 (Polston, C.J., dissenting) (criticizing
    the plurality's failure to give proper deference to the legislature's findings regarding the
    existence of a medical malpractice crisis).
    Santiago and Caceres also point to the supreme court's decision in North
    Broward Hospital District v. Kalitan, 
    219 So. 3d 49
     (Fla. 2017). There, the court
    addressed a statutory cap on noneconomic damages for injuries caused by medical
    malpractice. The Kalitan majority quoted and reiterated McCall's conclusions and
    likewise held that the cap on noneconomic damages arbitrarily limited damages without
    a rational relationship to the State's purported interest in alleviating an alleged medical
    malpractice crisis. The court concluded that "there is no evidence of a continuing
    medical malpractice insurance crisis justifying the arbitrary and invidious discrimination
    between medical malpractice victims." Id. at 59.
    Santiago and Caceres contend these later declarations that there is no
    evidence of an ongoing medical malpractice crisis must undermine Mizrahi's decision to
    uphold section 768.21(8) premised on the existence of such a crisis. We disagree, at
    least insofar as Mizrahi remains legally binding precedent. First, McCall expressly
    stated that its holding was "not inconsistent" with Mizrahi because the statutes at issue
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    in the two cases were materially different, in that the damage caps at issue in McCall
    (and later Kalitan) raised different equal protection concerns than did the class limitation
    at issue in Mizrahi. 134 So. 3d at 903–04. McCall's and Kalitan's discussions of the
    medical malpractice crisis therefore did not directly abrogate Mizrahi on the issue of
    whether section 768.21(8) violates equal protection.
    Moreover, we are bound to follow Mizrahi even if the supreme court's
    subsequent decisions in related cases suggest that it might decide the case differently if
    it were to address the issue today. When a district court believes that a supreme court
    case has been incorrectly decided or should be reevaluated, the court cannot simply
    deviate from the supreme court's decision. Rather, the proper procedure is to follow the
    precedential case and certify a question of great public importance that presents the
    district court's concerns. See Strickland v. State, 
    437 So. 2d 150
    , 152 (Fla. 1983);
    Hoffman v. Jones, 
    280 So. 2d 431
    , 434 (Fla. 1973) (noting that district courts are free to
    certify questions and advocate a change in the law when they deem it appropriate but
    that they are "bound to follow the case law set forth by this Court"). We follow that path
    here.
    Mizrahi expressly decided the constitutional question that Santiago and
    Caceres raise in this case, and it continues to be binding precedent. Pursuant to that
    decision, we declare that section 768.21(8) is valid as against the equal protection
    claims asserted here. Accordingly, we affirm the dismissal at issue.
    However, we are mindful of McCall's observations that "a crisis is not a
    permanent condition" and that "[c]onditions can change, which remove or negate the
    justification for a law, transforming what may have once been reasonable into arbitrary
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    and irrational legislation." 134 So. 3d at 913. McCall and Kalitan suggest that such is
    the case with respect to the medical malpractice crisis that, according to Mizrahi, formed
    the constitutional underpinning of section 768.21(8). For this reason, we certify the
    following question of great public importance:
    IN LIGHT OF THE SUPREME COURT'S DECISIONS IN
    ESTATE OF McCALL v. UNITED STATES, 134 SO. 3D 894
    (FLA. 2014), AND NORTH BROWARD HOSPITAL
    DISTRICT v. KALITAN, 219 SO. 3D 49 (FLA. 2017), DOES
    SECTION 768.21(8), FLORIDA STATUTES, VIOLATE THE
    EQUAL PROTECTION GUARANTEES OF THE UNITED
    STATES AND FLORIDA CONSTITUTIONS,
    NOTWITHSTANDING THE COURT'S PRIOR DECISION
    ON THE ISSUE IN MIZRAHI v. NORTH MIAMI MEDICAL
    CENTER, LTD., 761 SO. 2D 1040 (FLA. 2000)?
    Affirmed; question certified.
    BLACK and LUCAS, JJ., Concur.
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