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 
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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.