SUAREZ, J.
In this medical malpractice action, Plaintiff-Appellant Aracely Salazar ("Salazar") appeals the entry of summary judgment in
In order to understand the facts of this case, it is necessary to first examine the portions of the statutory provisions which are at the crux of the issue in this appeal:
Simply, the issue in this appeal is: does the Section 766.106(3)(a) 90-day tolling of the statute of limitations, effective upon receipt of a notice of intent to initiate litigation, toll the statute of limitations only as to the defendant receiving the notice, or does it also toll the statute of limitations for ninety days as to other likely defendants, known to the claimant but who have yet to be served with a notice of intent to initiate litigation? If the tolling is not effective as to the other likely defendants, then the notices of intent sent to the Appellees were untimely. However, if the 90-day tolling applied to other possible defendants, then Salazar's notices to the Appellees were timely. For the reasons stated below, we find that in this factual scenario, the Section 766.106(3)(a) 90-day
This lawsuit arises from surgery performed on Salazar on August 22, 2007. Dr. Moliver, Hew and KAA were the anesthesia providers for the surgery. For purposes of this opinion we will assume that Salazar became aware (or should have become aware) shortly after the surgery that Dr. Moliver, Hew and KAA were involved in the surgery. Salazar alleges that as a result of the surgical procedure she suffered a severe right brachial plexus injury. Following the surgery, she became aware that her injury might have been the result of medical malpractice.
However, on October 21, 2009, with thirty days remaining on what was then left of the extended statute of limitations, Salazar sent a Notice of Intent to Initiate Litigation to the surgeon who performed the surgery and the hospital at which the surgery was performed.
The gist of the Appellees' argument to the trial court, as well as on appeal, is that subsection 766.106(2), requires that, after completion of the statutorily-required presuit investigation, a medical negligence claimant "shall notify each
Appellees argue, however, that the 90-day tolling does not also apply to them because Salazar became aware shortly after the surgery that the Appellees participated in the surgery and they were therefore "prospective defendants" of Salazar's claim. Appellees assert that, pursuant to Section 766.106(2)(a), the only way Salazar could toll the running of the statute of limitations as to them (as "prospective defendants") was by serving a Notice of Intent to initiate Litigation on each of them prior to November 20, 2009. Appellees posit that once Salazar served them with a Notice of Intent, Section 766.106(4) would have tolled the statute of limitations for 90 days for Salazar to file her lawsuit against them. According to Appellees, Salazar's failure to send Notices of Intent to them prior to November 20, 2009 defeated her claims against them. The trial court agreed and entered summary judgment in their favor on that issue. This appeal followed.
We disagree with the trial court's ruling. We find that the Notices of Intent received by the surgeon and the hospital on October 22, 2009 did toll the statute of limitations, not only as to the surgeon and hospital, but also as to all of Salazar's defendants, however denominated (and regardless of whether they received those notices or not). The October 22, 2009 date of the Notices of Intent to Initiate Litigation sent to the surgeon and hospital is critical for the issues on appeal because subsection 766.106(4) states:
We acknowledge that subsections 766.106(4) and 766.106(2) use different terminology, one uses "prospective defendant" and one uses "potential defendant." The use of the differing terms gives rise to the question of whether the terms are interchangeable or whether the Legislature intended them to have different meanings. After extensive review of the Florida Statutes and the history of Section 766.104 we are unable to conclude that the Florida Legislature intended the different terms to carry different meanings in the context of Chapter 766. Consequently, we hold that subsection 766.106(4) means what it says and that the statute of limitations on Salazar's claims as to any defendant was tolled for a period of ninety days from October 22, 2009 and that Salazar's notices to Appellees were timely as they were sent within the statute of limitations as properly calculated under all of the terms of Section 766.104 and Hankey, 755 So.2d at 99-100 n. 7 (Fla.2000).
We base this conclusion on several grounds. First, as was well stated by the court in Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283, 286 n. 3 (Fla. 5th DCA 2004) (internal citations omitted):
See also, Largie v. Gregorian, 913 So.2d 635, 643 (Fla. 3d DCA 2005) ("In construing this statute liberally, courts have recognized that the statutory intent of the pre-suit investigation and notice requirements was to screen out frivolous lawsuits and alleviate the high costs of medical malpractice claims."). Thus, we begin with the concept that in creating the statutes relating to medical malpractice claims, the Legislature was motivated not only to prevent frivolous claims, but to also ensure claimants full access to the courts. Accordingly, Salazar is not to be deprived of the opportunity to fully prove her claim solely on the basis of potentially confusing terminology in the statutes guiding her access.
We are further supported in our determination that the terms are synonymous by the use of similar terms throughout the Florida Statutes. As the Florida Supreme Court has stated, one "way of determining the Legislative intent in using [a term] is by examining other uses of the word in similar contexts." Hankey, 755 So.2d at 96.
Thus, within the statutory chapter addressing medical malpractice claims, the Legislature uses the terms "potential" and "prospective" interchangeably and as synonyms, demonstrating that it did not intend the two terms to carry different meanings.
Further evidence of the Legislature's lack of differentiation between the terms is found in sections 400.0233 and 429.293, Florida Statutes (2009), which provide for pre-suit notice and investigation of claims against nursing homes and assisted living facilities respectively. Both those sections use the term "prospective defendant" throughout, including within the subsections which parallel the tolling of the statute of limitations set forth in section 766.106(4).
Finally, the difference in the language in the two subsections has existed since the statute was first enacted in 1985, see Chapters 85-175, § 14 at 1200, Laws of Florida, and has continued to exist throughout the re-enactments of the statute. Nothing in the initial legislative history or any re-enactment indicates any intent for the terms to have a different meaning. See Wood v. Fraser, 677 So.2d 15 (Fla. 2d DCA 1996) ("[W]e find it significant that since our judicial interpretation of the interplay between section 95.11(4)(b) and [] section 766.106(4) the legislature has continually reenacted these statutory provisions without any change in the language. We note, in that regard, Florida's well-settled rule of statutory construction that the legislature is presumed to know the existing law when a statute is enacted, including `judicial decisions on the subject concerning which it subsequently enacts a statute.'").
Appellees argue that "the intent behind the medical malpractice statutes supports the position that the statute of limitations is tolled only as to the medical provider served with a notice of intent." (Answer Brief at p. 18) (emphasis added). We find nothing in the text of Chapter 766 or any case law interpreting it which supports that conclusion. Likewise, the language of Chapter 766 does not support Appellees' argument that "[t]he purpose of the ninety-day tolling period is not to give a claimant an additional ninety days within which to pursue claims against another healthcare provider not yet served with a notice of intent.... [T]here is nothing in Florida Statutes Section 766.106 that provides that a plaintiff is entitled to the benefit of more
In fact, the only cases that have addressed the difference in language between subsections 766.106(2) and (4) have determined that the tolling applies to all defendants and that multiple tolling periods may exist. In Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002) the Fifth District concluded that the two-year statute of limitations for Burbank's claim would have expired on November 19, 1996 but under Hankey, the ninety-day extension of subsection 766.104(2) "is tacked onto the end of the statute of limitations" and that "in the absence of any other tolling, Burbank's statute of limitations would have expired on February 18, 1997." On January 12, 1997, notices of intent to sue were sent to Dr. Kero, Suncoast OBGYN and Oak Hill Hospital. The court reasoned that in light of those notices, "[t]he statute of limitations was then tolled ninety days from the date that the defendants received the notice." The court also concluded: "Applying the holding of Hankey and the plain language of section 766.106(4) Florida Statutes, the statute of limitations clock stopped running as to `all potential defendants' for ninety days, or until April 13, 1997." Id. at 294. On March 25, 1997, Oak Hill Hospital sent documents which indicated that a Dr. Sztulman was involved in the incident. Burbank sent a notice of intent to sue Dr. Sztulman on March 31, 1997, and it was received by him on April 7, 1997. Under those facts, the court stated that: "At that time, there was still time remaining on the statute of limitations. Because of the tolling effect of the notice of intent, the statute of limitations,
Similarly, in CORA Health Services v. Steinbronn, 867 So.2d 587 (Fla. 5th DCA 2004), the claimant sent notice of intent to Daytona Healthcare Investors, LLC in May 2002, but filed suit against both Daytona and CORA Health Services in October 2002. The statute of limitations for the negligence claim would have expired on December 26, 2002. On January 2, 2003, the claimant sent a notice of intent to CORA. Applying Burbank, the Fifth District found that the statute of limitations for the claim against CORA was affected by the notice to Daytona, stating:
Id. at 589.
Thus, the Fifth District has twice concluded that notice of intent to sue received
Appellees argue that Burbank is distinguishable because the claimant there was unaware of Dr. Sztulman's involvement at the time of her initial notices of intent whereas Salazar knew of Appellees' involvement in her care at all relevant times. We do not read Burbank as relying on that fact for its finding that the statute of limitations was tolled as to all defendants once the original notices of intent were received. We also find that a claimant's absence of knowledge of a medical practitioner's participation in their care may not be the only reason for delaying the sending of a notice of intent. It does not strain the imagination to hypothesize that a claimant may not receive corroborative opinions from medical experts for all claims at the same time. If a claimant is delayed in receiving an opinion from one expert there is no basis in the statutes or the purpose of the legislation for requiring a claimant to delay sending notices to those practitioners as to whom he or she has received the necessary expert opinion. Moreover, to follow Appellees' argument would lead to a multitude of potential hearings in almost every case on the issue of the timing of a claimant's knowledge as to each practitioner's involvement in his or her care. Such proceedings would not serve the legislative purposes of the statutes as such proceedings would add to and not decrease the cost of the claim and would also slow the progress of the claim.
In further support of their claim that notice of intent to one defendant does not toll the statute of limitations as to all defendants, Appellees posit a situation in which there are ten different known but unrelated defendants. Appellees argue that a claimant could extend the statute of limitations nine separate times, thus extending the statute as to the tenth defendant years after the statute applicable to the first noticed defendant. We acknowledge that such an unlikely scenario could exist under Chapter 766, but do not consider its improbable potentiality as a reason to read language into subsection 766.106(4) that does not exist. Additionally, Section 95.11 makes clear that claims based upon negligence must be brought within four years.
In summary, to give the required broad meaning to the language of the controlling statutes and to follow the intent of the Legislature to preclude frivolous claims, but still provide access to the courts, we find that Salazar was not required to send notices of intent to initiate litigation to all practitioners at the same time and that she properly complied with all of the requirements of section 766.106.
We further agree with Salazar that her Complaint against Appellees was timely filed in light of the ninety-day tolling period which arose upon Appellees' receipt of her Notices of Intent. Those notices were received by Appellees on February 16, 2010. At that point, Salazar had three days remaining under the statute of limitations. Upon receipt of the notices by Appellees, under subsection 766.106(4), the statute of limitations was tolled as to Appellees until May 13, 2010. Thereafter, the time for Salazar to file suit was controlled by Florida Rule of Civil Procedure 1.650(d)(3), which provides:
Subsection 766.106(4) also states: "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." Thus, Salazar had sixty days from May 13, 2010 within which to file her action against Appellees, since that was a longer period than the three days remaining on the statute of limitations. Salazar's Complaint was filed June 8, 2010, well within that time period.
Reversed and remanded.
