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Aristide v. Jackson Memorial Hospital12/14/2005
Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
Appellant, Marie Aristide ("Aristide"), appeals the trial court's order dismissing her complaint with prejudice for failure to file within the required statute of limitations. We affirm the trial court's order.
On April 29, 2004, Aristide filed a medical malpractice claim. Her complaint alleges that, on January 6, 1991, she gave birth at Jackson Memorial Hospital to Immacula LaFortune and that, due to medical malpractice, Immacula now suffers from cerebral palsy.
The statute of limitations applicable to this case is set forth in section 95.11 of the Florida Statutes:
(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, 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, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child's eighth birthday . . . .
In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred . . . .
ยง 95.11(4)(b), Fla. Stat. (1993) (emphasis added).
Aristide concedes that the suit was not commenced within the statute's seven-year time limitation. She claims that she failed to discover the reason for her daughter's cerebral palsy within that time period due to the defendant doctors' misrepresentation of the cause of her daughter's injuries. She argues that the court, therefore, should extend the time for filing based on either the doctrine of contra non valentem or the doctrine of continuing tort. Neither doctrine is applicable.
The trial court did not err by refusing to apply the equitable doctrine of contra non valentem in this case. Contra non valentem is a Louisiana jurisprudential doctrine which means that "prescription does not run against a person who could not bring his suit." Carter v. Haygood, 892 So. 2d 1261 (La. 2005). Because Louisiana did not have a statute of repose in medical malpractice cases until 1975, the courts would apply the doctrine where an action was not commenced within the statute of limitations due to a doctor's alleged misrepresentation as to the cause of the injury. Indeed, Louisiana's codification of a statute of repose has called into question the doctrine's continuing validity in medical malpractice cases. See Carter v. Haygood, 892 So. 2d at 1270 n. 7 (noting that the continuing applicability of the contra non valentem doctrine in Louisiana is questionable in light of that state's three-year statute of repose); Chaney v. State, 432 So. 2d 256 (La. 1983) (same). The doctrine is inapplicable here because Florida law provides for a statute of repose that specifies the time limit for filing a medical malpractice suit. Section 95.11(4)(b) provides litigants with a maximum period of seven years from the date of the injury to commence a medical malpractice case. The statute bars actions filed outside that time period even if the malpractice was not timely discovered due to fraud or concealment. Carr v. Broward County, 541 So. 2d 92 (Fla. 1989) (holding that parents' medical malpractice action was barr
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