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Walker v. Virginia Insurance Reciprocal3/20/2003
We have for review the decision in Virginia Insurance Reciprocal v. Walker, 765 So. 2d 229 (Fla. 1st DCA 2000), which certified conflict with the decision in Wendel v. Hauser, 726 So. 2d 378 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of the First District Court of Appeal in Virginia Insurance Reciprocal.
FACTUAL AND PROCEDURAL BACKGROUND
Emily Aumon was transferred to Scottish Rite Children's Medical Center, Inc., in Atlanta, Georgia, on June 4, 1991, the day after she was born. After Emily was discharged from Scottish Rite on June 14, 1991, Dr. Frank C. Walker assumed Emily's care in Tallahassee, Florida. Approximately eleven months later, Emily's parents, Ann and Robert Aumon, sought a second opinion from Dr. Larry Deeb, who diagnosed Emily with a condition known as congenital hypothyroidism. This condition can be detected by routine metabolic testing and can be treated effectively if the diagnosis is made soon after birth. However, neither the physicians at Scottish Rite Children's Medical Center nor Dr. Walker conducted the testing required to diagnose hypothyroidism.
Following Dr. Deeb's diagnosis, the Aumons filed a medical malpractice suit against Scottish Rite and the physicians who treated Emily in Georgia, alleging that Emily was injured because of their failure to test her for hypothyroidism. The Aumons claimed Scottish Rite failed to test Emily for hypothyroidism within one week of her birth as required by Georgia public health laws and failed to determine if the hospital where she was born had done so. The suit further alleged that this failure to diagnose Emily's condition left her with permanent physical impairments and mental retardation.
Virginia Insurance Reciprocal, Inc. (Virginia Insurance), Scottish Rite's insurer, settled with the Aumons for $1.65 million on June 11, 1997. Virginia Insurance also prepared to assert a contribution claim against Dr. Walker (Walker) and his professional association, on the grounds that Walker had also negligently failed to diagnose Emily's condition and this negligence was the partial cause of the loss for which Virginia Insurance had compensated the Aumons. Because the contribution claim was based on a claim of medical malpractice, Virginia Insurance complied with the medical malpractice presuit screening requirements of sections 766.104 and 766.203, Florida Statutes (1997).
On May 14, 1998, Virginia Insurance served an "intent to litigate" against Walker, as provided in section 766.106(2), Florida Statutes (Supp. 1998). When the claim was not resolved during the presuit screening process, Virginia Insurance filed a complaint for contribution against Walker in circuit court on November 13, 1998, contending it was entitled to contribution because it had paid more than its pro rata share of the common liability of those released in the underlying suit. See § 768.31(2), Fla. Stat. (1997). Walker answered the complaint by denying the allegations and moving for summary judgment on the ground that Virginia Insurance's contribution claim was barred by the statute of limitations in section 768.31(4). Virginia Insurance did not dispute that the complaint had been filed more than one calendar year after it had settled the claim on behalf of Scottish Rite, but argued that the statute of limitations was tolled during the presuit screening procedure and thus the complaint was timely filed. Walker responded that the presuit screening requirements were inapplicable to contribution claims and thus any effort to comply with the requirements had no effect on the statute of limitations in this case.
The circuit
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