Medical Malpractice

Hillsborough County Hosp. Auth. v. Coffaro, No. SC00-665, 2002 WL 31190892 (Fla. Oct. 3, 2002).

This case involves the running of the statute of limitations in medical malpractice cases and how it is computed in relationship to the statutory ninety-day extension provision of Section 766.104(2) and the sixty-day filing-of-suit provision of Section 766.104(6). Specifically, the following question was certified to the Florida Supreme Court:

IS A 90-DAY EXTENSION PURCHASED UNDER SECTION 766.104(2), FLORIDA STATUTES (1995), INCLUDED IN THE LIMITATIONS PERIOD WHEN CALCULATING WHETHER A PLAINTIFF IS ENTITLED TO AN ADDITIONAL 60 DAYS UNDER SECTION 766.106(4) FOR FILING SUIT?

Section 766.104(2), Florida Statues, states:

Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $25, established by the chief judge, an automatic 90 day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

§ 766.104(2), FLA STAT. (2001) (emphasis added).

On the other hand, Section 766.106(4), Florida Statutes, provides:

The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90 day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90 day period may be extended and the statute of limitations is tolled during any such extension. 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.

§ 766.106(4), FLA. STAT. (2001) (emphasis added).

The defendants argued that the purchased extension should be applied to the remaining statute of limitations period at the time of purchase. The plaintiff, on the other hand, argued that the purchased extension should be tacked on to the end of the statute-of-limitations period, such that the plaintiff would be entitled to both the sixty-day period under Section 766.106(4), and the ninety-day purchased extension under section 766.104(2). The court agreed with the plaintiff, holding that the ninety-day extension of the medical malpractice statute of limitations (which is provided for the purpose of conducting a reasonable investigation into whether there are grounds for a good-faith belief that medical malpractice occurred) is not added to what remains of the original statute of limitations, but is added after the sixty-day extension period in which the patient may file suit after receiving notice that negotiations were terminated. Thus, the certified question was answered in the negative.

Ricks v. Loyola, 822 So.2d 502 (Fla. 2002).

This medical malpractice case involved a situation were the defendant's attorney used an "empty chair" argument in its opening statement at trial, implying that the plaintiff had settled with prior defendants. The plaintiff moved for a mistrial, but asked the court to defer ruling on the motion until after the trial and jury's verdict, which the trial court did. When the verdict was for the defendant, the judge granted the motion for new trial and the defendant appealed. The Florida Supreme Court held that the trial court was well within its discretion to reserve ruling on the defendant's "empty chair" comment until after the jury returned a verdict, and was also within its discretion in concluding that the same "empty chair" reference warranted a new trial. The defendant's attorney not only emphasized that there was an "empty chair" by discussing other parties' absence from the courtroom, but he insinuated that the defendant was responsible for their absence and was withholding an explanation from the jury. The trial court rightly assumed that the jurors would interpret the statement to imply that a settlement had been reached with others involved in the case (although the defendant never used the term "settlement"). Thus, the statement imposed an improper burden on the plaintiff to explain why others were not parties to the malpractice suit, which warranted a new trial.

Moossun v. Orlando Regional Health Care, 826 So.2d 945 (Fla. 2002).

This wrongful death case addressed issues as to what is "record activity" for purposes of dismissal for lack of prosecution. The decedent died in a hospital from pneumonia, and her father brought a medical malpractice action alleging misdiagnosis. The trial court dismissed the action for failure to prosecute. The Florida Supreme Court ultimately affirmed, holding that the trial court's order setting a case-management conference did not constitute sufficient "record activity" to preclude a dismissal for failure to prosecute.

Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334 (Fla. 2002).

This case involved a widow-plaintiff who brought an action against a physician, alleging that the negligent treatment of her husband's cancer resulted in her husband's premature death. After a jury verdict for the defendant-physician, the trial court granted the widow's motion for a new trial based on a juror's nondisclosure of the juror's prior litigation history. The defendant appealed. The Third District Court of Appeal reversed the order for new trial and subsequently the widow appealed to the supreme court, asserting that the Third District's opinion conflicted with decisions in the Fourth and Second Districts. The Supreme Court held that a juror's failure to disclose prior litigation history during voir dire questioning improperly took from the trial court its responsibility to determine whether a juror's prior litigation history was material to the case being tried. Thus, the nondisclosure could have been the basis for a peremptory challenge. The court also held that trial counsel was not required to conduct a public records search of potential jurors in order to satisfy the due-diligence requirement regarding juror nondisclosure of information. The court remanded to the trial court and disapproved the holdings in Vanderbilt Inn on the Gulf v. Pfenninger, ___ So.2d ___, 27 Fla. L. Weekly D1955, 2002 WL 2005916 (Fla. 2d DCA Aug. 30, 2002); Bornemann v. Ure, 778 So.2d 1077 (Fla. 4th DCA 2001); and Silva v. Lazar, 766 So.2d 341 (Fla. 4th DCA 2000).

Goldenberg v. Sawczak, 791 So.2d 1078 (Fla. 2001), is not a malpractice case per se, but is instructive on what assets of a health-care defendant against whom a malpractice verdict has been obtained are subject to execution. In Goldenberg, a plaintiff was attempting to execute on a $4 million malpractice verdict he had obtained against a surgeon. The surgeon had declared bankruptcy and tried to exempt from the bankrupt estate, and from the patient's execution, the cash surrender value of several single premium deferred annuity contracts. The federal Eleventh Circuit asked the Florida Supreme Court to determine whether the cash surrender value of these annuity contracts were "proceeds of annuity contracts" under Section 222.14, Florida Statutes, and thus exempt from execution. The supreme court, citing Florida's "long-standing policy that favors liberally construing exemption statutes so as to prevent debtors from becoming public charges," 791 So.2d at 1081, held that "proceeds of an annuity contract where there is a surrender penalty are exempt from legal process." 791 So.2d at 1083. Thus, the malpractice judgment creditor could not execute on the surgeon's annuity contracts.

Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040 (Fla. 2000).

Although the issues in this case arose in the context of a wrongful death claim alleging medical malpractice, such issues are not unique to such cases.

The plaintiff in this wrongful death case was the estate of a deceased patient, who contended that the death was the result of medical malpractice by the defendants. The presuit notice of intent to initiate a malpractice claim [as required by Section 766.106(2), Florida Statutes] and the complaint filed by the plaintiff were signed by a Michigan attorney who was not licensed to practice law in Florida. The plaintiff subsequently sought to amend the complaint after a Florida attorney had made an appearance on its behalf, but at that point the defendants argued that the statute of limitations had expired, and that the complaint could not be amended because it was a nullity, not having been signed by a licensed Florida attorney as required by Florida court rules.

The trial court and the lower appellate court both agreed that the pleading signed by the non-Florida attorney was a nullity, and therefore held that the plaintiff's case should be dismissed. However, the Florida Supreme Court disagreed. Although the filing of a complaint or other pleading signed by an attorney not admitted to practice in Florida was contrary to the rules, the court held that the public policy of allowing lawsuits to be determined on their merits rather than on the basis of technicalities required that such pleadings not be totally disregarded, and that the party in whose behalf such a pleading was filed should be allowed a reasonable time in which to procure representation by a Florida-licensed attorney. The court held that such a right of amendment should be allowed even if the plaintiff would be unable to establish the requirement of "excusable neglect" that is required by the law in order to set aside a default judgment.

St. Mary's Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla. 2000).

This case addressed issues concerning the damages recoverable in a wrongful death action based on allegations of medical malpractice, where the parties have elected to use the voluntary binding-arbitration procedure provided by the Florida statutes.

The Florida statutes governing medical malpractice actions provide a procedure under which the parties may voluntarily agree to submit their dispute to an arbitrator for resolution, and once the parties elect such an option, the decision of the arbitrator is made binding upon the parties, and essentially serves as a substitute for judicial resolution of the dispute. Such procedure is intended to provide the parties with an alternative that is faster and more economical than a formal trial before a court or jury. One of the major inducements for medical malpractice defendants to agree to such an alternative is a provision in Section 766.207(7)(b), Florida Statutes, which limits the amount that an arbitrator can award as "non-economic damages" in such proceedings to the sum of $250,000.00 "per incident." (Non-economic damages refers to damages a person incurs as a result of an incident which do not involve out-of-pocket expenses such as lost earnings or medical bills incurred. Common examples of non-economic damages include claims for pain and suffering or loss of enjoyment of life.)

The plaintiffs in this case were the personal representatives of deceased patients whose deaths were allegedly caused by the medical malpractice of the defendants. Under the Florida wrongful death statute, the personal representative of the estate of a decedent is responsible for bringing a single wrongful death action on behalf of all the beneficiaries of the estate who are permitted to recover under the terms of the Wrongful Death Act. The plaintiff/personal representatives in this case sued on behalf of all the beneficiaries, elected to employ the optional procedure for binding arbitration, and then obtained arbitration awards that included total "non-economic" damage awards in excess of $250,000.00, including the awards in favor of all the beneficiaries (although none of the beneficiaries was awarded an individual recovery for non-economic damages in excess of $250,000.00).

The defendants argued on appeal that the statutory limit of $250,000.00 "per incident" placed an overall limit of that amount on all non-economic damage awards in favor of any beneficiary entitled to recover for the same decedent's death. However, the Supreme Court rejected this argument, holding that each individual beneficiary had a separate claim for wrongful death, although the personal representative was designated by law with the responsibility for prosecuting all such claims. The court therefore held that each individual claimant was entitled to recover up to $250,000.00 in non-economic damages. It based this holding on its interpretation of the statutory language, the legislative history of the statute, and the desire to avoid any equal protection challenges that might be brought to the validity of the statute if it were construed to impose an overall cap of $250,000.00 on the amounts that could be awarded to all beneficiaries as non-economic damages.

The court also considered an issue concerning the types of damages that could be recovered as "economic damages" in a wrongful death/medical malpractice action where the parties had elected to use the optional procedure for voluntary binding arbitration. The Wrongful Death Act restricts the types of economic damages that can be recovered in such cases to certain specified types (primarily medical and funeral bills, and the loss of the decedent's services), whereas the medical malpractice statute authorizes recovery of a wider range of economic damages (specifically including loss of earnings). The court held that in cases of wrongful death claims based on alleged medical malpractice, and where the parties opt to employ the voluntary binding arbitration procedure, the broader definition of recoverable economic damages contained in the medical malpractice statute was controlling.

Mizrahi v. North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla. 2000).

This case upheld the constitutionality of Section 768.21(8), Florida Statutes, which prohibits recovery of non-economic damages by adult children of the decedent in wrongful death actions based upon allegations of medical malpractice, even though the same class of survivors is entitled to recover the same type of damages in wrongful death claims where the alleged negligence of the defendant did not involve medical malpractice.

The plaintiffs in these wrongful death actions were the personal representatives of the estates of decedents whose deaths were allegedly attributable to acts of medical malpractice committed by the defendants. The decedents in both cases were unmarried at the time of death, and survived only by adult children. In defense of the plaintiffs' claims for non-economic damages (i.e., pain and suffering) sustained by the adult children due to their parents' deaths, the defendants relied on Section 768.21(8), Florida Statutes. This statute, while generally authorizing recovery of non-economic damages in favor of adult children of an unmarried decedent who was not survived by any minor children, contained an exception prohibiting such recovery in cases where the wrongful death is alleged to be caused by one or more acts of medical malpractice. The plaintiffs argued that the statute could not be applied to bar their claims, contending that it violated the constitutional guarantee of equal protection of the laws.

The lower courts rejected this argument, and the Supreme Court approved the lower court rulings upholding the statute as against the equal protection challenge. The court held that the distinction drawn between the statute (between claims based on medical malpractice and other types of negligence) was rationally related to a legitimate governmental objective of limiting increases in the cost of medical malpractice insurance premiums, which ultimately result in a rise in the price of medical care itself. The court therefore held that it was reasonable, and constitutional, for the legislature to prohibit the recovery of non-economic damages by adult children in medical malpractice cases, even though such recovery was permitted in other types of wrongful death actions.

Stewart v. Price, 762 So.2d 475 (Fla. 2000).

The decision in this case is essentially the same as in Mizrahi v. North Miami Medical Center, 761 So.2d 1040 (Fla. 2000). The court answered the identical question that was presented in Mizrahi in the same manner as was decided in Mizrahi.

Hankey v. Yarian, 755 So.2d 93 (Fla. 2000).

This case concerned the computation of the statute of limitations applicable to a medical malpractice claim.

Pursuant to Section 95.11(4)(b), Florida Statutes (1997), an action for medical malpractice must be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered with the exercise of due diligence. However, before a claimant can file a medical malpractice suit, chapter 766 prescribes a number of requirements and provisions that seek to enhance the prospect of a settlement, and that affect the running of the limitations period.

First, a claimant must conduct a reasonable investigation to determine if there are grounds for a good-faith belief that there was negligence in his care or treatment. § 766.104(1), FLA. STAT. (1997). After the completion of this presuit investigation, and during the two-year period provided for in Section 95.11(4)(b), the claimant must serve upon each prospective defendant a notice of intent to initiate litigation. § 766.106(2), FLA. STAT. (1997). No suit may be filed for a period of ninety days after this notice of intent is mailed to any prospective defendant. See, § 766.106(3)(a), FLA. STAT. (1997). In this regard, Section 766.106(4) provides that "[D]uring the 90-day period, the statute of limitation is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. 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."

In the present case, the plaintiff's lawsuit was not filed within two years of the alleged act of malpractice, but the plaintiff contended that the 90 days following the filing of the notice of intent to sue should be excluded from the two-year period, and that if the two-year limitations period was deemed to be tolled during such 90-day period, then the action was filed timely. The defendant, on the other hand, argued that the "tolling" language in Section 766.106(4) merely meant that the plaintiff was prohibited from suing during such 90-day period, but that such fact did not operate to extend the limitations period applicable to the claim.

The court, relying on both the language of Section 766.106(4) and the legislative history of the medical malpractice statute, concluded that Section 766.106(4) did in fact suspend the statute of limitations for the 90-day period following the filing of a notice of intent to sue. In other words, such period of time is to be excluded from the two-year period within which a malpractice plaintiff is allowed (and required) to sue.

Merkle v. Robinson, 737 So.2d 540 (Fla. 1999).

This case concerned the timeliness of a medical malpractice action filed in Florida and which would be barred by Florida's statute of limitations, but which would be timely under the law of some other state where the cause of action arose.

The plaintiff filed suit in Florida, alleging a cause of action for medical malpractice that had occurred in West Virginia while both the plaintiff and the defendant doctor were residents of that state. The doctor subsequently moved to Florida, and even later still, the plaintiff discovered that the defendant's acts of malpractice may have been the cause of the plaintiff's injuries. The plaintiff filed suit in Florida to recover for the alleged malpractice.

The action would have been barred by Florida's two-year statute of limitations applicable to claims of medical malpractice. However, the plaintiff argued that the lawsuit should not be dismissed for untimeliness, as it would be timely under the law of West Virginia (which provided generally that the statute of limitations was tolled during any period of time in which the plaintiff was a minor). The court agreed with the plaintiff's argument, holding that the "most significant relationships" test should be applied in order to determine which state's statute of limitations should be given controlling effect in determining the timeliness of a lawsuit. Applying that test to the facts of the case before it, the court held that West Virginia had the most significant relationship to the case, and since the action would have been timely under West Virginia law, it should not have been dismissed on the basis that the Florida statute of limitations had expired.

Cohen v. Dauphinee, 739 So.2d 68 (Fla. 1999).

This case concerned the confidentiality and admissibility in evidence of opinions expressed in an affidavit submitted in the course of a pre-suit investigation under the Florida medical malpractice statute.

As part of the Florida medical malpractice statute, the legislature has imposed a requirement for a pre-suit screening process. The purpose of this process is to provide an opportunity for defendants to evaluate malpractice claims so that meritorious claims can be disposed of quickly without the necessity of formal litigation. As part of the pre-suit process, the legislature has mandated that malpractice claimants obtain, and include as part of the claim, an expert opinion of a health-care provider to the effect that the malpractice claim has merit. § 766.203(2), FLA. STAT. Section 766.205(4) provides that "[n]o statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party."

In the present case, the plaintiff obtained and attached to the notice of intent to sue an affidavit of an expert as required by the foregoing statute. Subsequently, at trial, the plaintiff called this same expert as a witness, and the defendant sought to impeach the expert on the basis of statements contained in the presuit affidavit. In holding that this could not be done, the court relied on both the literal language of Section 766.205(4), as well as the language and legislative history of the malpractice statute as a whole. The court ascertained that the legislature's primary objective in enacting the pre-suit screening process was to encourage the free exchange of information, and held that such policy would be discouraged if statements offered during the pre-suit process could subsequently be used against the parties offering such statements. Accordingly, the court held that the affidavit could not be admitted in evidence at the malpractice trial, even for the limited purpose of impeaching the trial testimony of the same expert who had made the affidavit.

E.C. v. Katz, ___ So.2d ___, 24 Fla. L. Weekly S152 (Fla. April 1, 1999).

Although this case involved a medical malpractice claim, the issue addressed by the court really involved a general issue of procedure that could be applicable to any civil suit.

Under the rule of collateral estoppel (sometimes known as "issue preclusion") a determination in one lawsuit as to the existence or non-existence of certain facts may be binding in a later lawsuit involving the same parties and the same factual issue. However, in order for this principle to be applicable, it is generally required that there be complete mutuality, meaning that in order for one of the parties to be bound by the result in an earlier action, the other party to the later action must also be in a situation such that he or she would be bound by the earlier result, if it were not favorable to the position her or she presently wishes to advocate.

The plaintiff in this case alleged that the defendant medical practitioners were negligent in failing to diagnose that the plaintiff's minor child had been subjected to sexual abuse by the child's father. The defendants argued that such a claim was barred by the doctrine of collateral estoppel, in that the issue of whether the father had abused the child had been raised in an earlier action (a divorce proceeding between the plaintiff/mother and her husband/the father), and it had been determined in that action that no such abuse had occurred.

The court held that the defendants could not rely on the doctrine of collateral estoppel under the circumstances of this case, since the required mutuality was lacking. Even though the plaintiff/mother - against whom the doctrine of collateral estoppel was sought to be used in a defensive manner - had been a party to the earlier case, the defendant health-care practitioners had not been. Therefore, they would not have been bound by the outcome in the earlier case if it had reached a contrary conclusion (finding that the abuse alleged had in fact occurred). The principle of mutuality therefore prevented the outcome of the earlier case from being binding on the plaintiff/mother. The issue of whether the abuse alleged had occurred was an issue of fact to be resolved in the pending case, along with the question of whether the defendants had been negligent in failing to discover such abuse, if any existed.

Musculoskeletal Institute v. Parham, ___ So.2d ___, 24 Fla. L.Weekly S120 (Fla. March 11, 1999).

This case involves the issue of how and to what extent a medical malpractice plaintiff's compliance with the required pre-suit procedures affects the timeliness of the plaintiff's claim.

The medical malpractice statute specifies that before a plaintiff can file suit, certain pre-suit procedures must be followed. The statute requires that the plaintiff provide notice to the defendant of the plaintiff's intent to sue, and to furnish along with such notice a verified written opinion of a medical expert indicating the existence of grounds to believe that malpractice occurred. Suit cannot be filed until at least 90 days have elapsed after the giving of such notice. In order to be timely filed, a medical malpractice statute must meet two separate deadlines; the failure to satisfy either one will result in the action being dismissed. The first deadline is the two-year statute of limitations. This period generally begins to run from the time that the act of malpractice occurred, but in situations where the plaintiff(s) did not know, and could not reasonably have known, that the defendant(s) had committed any wrong at that time, the two-year period does not begin to run until the plaintiff(s) knew or should have known of the existence of a malpractice cause of action.

The other time limitation applicable to a medical malpractice action is what is known as the "statute of repose." This statute requires that regardless of when the plaintiff(s) knew or should have known of the existence of a malpractice cause of action, such cause of action must be filed within four years of the date of the conduct giving rise to the cause of action. The malpractice statute specifically states that where a plaintiff provides the required pre-suit notice within the period of time allowed by the statute of limitations, such action will toll (or cease the running of) the statute of limitations during the 90-day period following the notice, during which the plaintiff is precluded from filing suit. However, the statute is silent regarding whether the pre-suit notice has a similar effect on the statute of repose.

The issue involved in this case was whether the plaintiff's giving of the pre-suit notice within the four years allowed by the statute of repose resulted in the cause of action being timely, even though the suit was not actually filed until more than four years after the act of malpractice occurred. The plaintiff contended that the suit was timely, because the pre-suit notice had tolled the statute of repose as well as the statute of limitations.

The court agreed with the plaintiff and held that the action was filed in a timely manner. Although the malpractice statute did not expressly provide that the filing of the pre-suit notice should toll the four-year statute of repose (as it did with respect to the two-year statute of limitations), the court held that the overall structure and objectives of the malpractice statute required that the statute of repose be treated as having been tolled during the time that the plaintiff was complying with the mandatory requirements for pre-suit notice and investigation.

The court noted that the purpose of the pre-suit requirements was to promote early investigation of the merits of malpractice claims, and settlement of those which proved to have a substantial basis. In order to achieve these objectives, the legislature had mandated that plaintiffs comply with the required pre-suit procedures, and had prohibited the filing of suit until these procedures had been followed. The legislature had further provided that a plaintiff's compliance with these requirements should not cause the plaintiff's claim to be untimely under the statute of limitations. The court held that a similar result was required with respect to the statute of repose, in order to avoid a denial of the constitutional guarantee of access to the courts.

Therefore, the court held that for purposes of the four-year statute of repose, a medical malpractice action is deemed to be commenced when the plaintiff provides pre-suit notice of intent to sue, and that the provisions of the malpractice statute regarding tolling of the statute of limitations should also apply to the statute of repose.

Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997).

The court was presented with the following question, which had been certified to be a question of great public importance:

Whether Section 766.316, Florida Statutes (1993), requires that health care providers give their obstetrical patients pre-delivery notice of their [the health care provider's] participation in the Florida Birth Related Neurological Injury Compensation Claim [NICA] as a condition precedent to the providers' invoking NICA as the patient's exclusive remedy.

The court answered the question presented in the affirmative.

The plaintiffs had sued the obstetrician who had delivered their baby, alleging that he was guilty of negligence that caused serious and permanent brain injuries to the baby. The defendant argued that a negligence claim was precluded by NICA, which limited the plaintiffs to administrative relief. The plaintiffs responded that although NICA did provide certain provisions limiting the availability of a negligence claim, the defendant was not entitled to rely on them because he had failed to provide pre-delivery notice to the plaintiffs of his participation in the NICA plan.

The court agreed with the plaintiffs, holding that a health-care provider participating in NICA must give a patient notice of this fact a reasonable time prior to delivery, when it is practicable to do so. In the absence of such notice, the health-care provider is not entitled to rely on NICA's provisions limiting a patient's right to recover under tort claims.

University Medical Center, Inc. v. Athey, 699 So.2d 1350 (Fla. 1997).

The decision in this case is essentially the same as in Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997). The court answered the identical question that was presented in Galen in the same manner as was decided in Galen.

Domond v. Mills, 696 So.2d 314 (Fla. 1997).

The decision in this case is essentially the same as in Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997). The court answered the identical question that was presented in Galen in the same manner as was decided in Galen.

Tanner v. Hartog, 696 So.2d 705 (Fla. 1997).

In this case the court considered the right of an expectant mother to sue for negligence by a health-care provider that caused the child to be delivered stillborn. Earlier cases had held that there was no cause of action under the Florida Wrongful Death Act in such circumstances, based on the rationale that an unborn fetus was not a "person." Extending this rationale, the court reasoned that if a fetus is not considered a separate person, it must then be considered to be part of the mother's body, so that the mother should have a right of action for negligence of another resulting in injury to the fetus.

The primary obstacle to allowing recovery by the mother, the court noted, is the so-called "impact rule," which generally requires that, before a plaintiff can recover for emotional distress caused by the negligence of another person, the plaintiff must show that the emotional distress flowed from physical injuries the same plaintiff had sustained. However, the court held that the "impact rule" had no application to a cause of action for "wrongful stillbirth," an action which the court held was recognized in Florida.

Damiano v. McDaniel, 689 So.2d 1059 (Fla. 1997).

This case involved the constitutionality of the "statute of repose" for medical malpractice claims, which statute requires claims to be brought within four years of the date of the act of malpractice on which the claim is brought, regardless of when the patient becomes aware of the injurious consequences of the malpractice. The plaintiffs' claim alleged that the plaintiff-wife had been infected with the HIV virus as a result of a tainted blood transfusion in June 1986. She was diagnosed with AIDS in April 1990. By that time, she had infected the plaintiff-husband. The plaintiffs filed suit in 1992, but the court held that the claim was untimely, since it was brought more than four years after the act of malpractice, even though it was filed within two years after the plaintiffs learned of the injury that had been caused by that malpractice.

The court acknowledged that the plaintiffs' cause of action did not accrue until they learned of their injuries resulting from the act of malpractice, and that the result in the instant case appeared somewhat harsh, since the effect of the statute of repose was to bar the cause of action before it ever accrued. Nevertheless, the court held that the language of the statute of repose required that the claim be brought within four years of the defendant's actionable conduct, regardless of the date of accrual of the plaintiff's claims, and that such a result was justified by the legislature's objective of reducing the exposure of health-care providers to medical malpractice claims. In fact, the court held that the precise issue presented had already been decided adversely to the plaintiffs, by the court's prior decisions in Carr v. Broward County, 541 So.2d 92 (Fla. 1989) and University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991).

Stoll v. Noel, 694 So.2d 701 (Fla. 1997).

This case involves the extent to which independent health-care providers hired by an agency of the state to provide medical services to the agency's clientele are entitled to immunity from tort liability for negligence. The plaintiffs sued to recover for injuries sustained by their minor daughter as a result of alleged negligence on the part of independent physicians hired by the Florida Department of Health and Rehabilitative Services (HRS) who provided treatment to the plaintiffs' daughter pursuant to an HRS program.

The defendant physicians argued that they were entitled to immunity under the Florida waiver-of-sovereign-immunity statute. This statute provides that while a governmental agency may be liable in tort under certain circumstances, the individual agents of the government agency are not personally liable for torts committed in the course of their agency, except in cases where they intended to cause injury. The plaintiffs asserted that the defendant physicians were not entitled to immunity, even though HRS had acknowledged its own liability as an agency for the physicians' conduct, since the physicians were "independent contractors" rather than employees of HRS.

Although the court agreed that these physicians were independent contractors rather than employees under the tests traditionally used to distinguish these concepts, it nevertheless held that the physicians' status as independent contractors did not necessarily preclude them from enjoying immunity as "agents" of HRS. To the contrary, the court held that the independent contractor physicians were indeed agents, insofar as HRS retained control over the nature of the services to be provided by the physicians, although not their actual physical conduct in providing such services. Thus, the court held the plaintiffs had no right of action against the independent physicians, although their right to recover from HRS upon proof of negligence by the physicians was not disputed.

Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings, 686 So.2d 1349 (Fla. 1997).

This case addressed the prerequisites to a right of recovery under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). NICA is a statutory scheme, similar to the workers' compensation act, under which physicians participating in the scheme are granted immunity from tort liability for negligence in birth-related medical services. Instead, NICA allows recovery for birth-related injuries, on a no-fault basis, in cases where the birth related injuries result in the child being "permanently and substantially mentally and physically impaired."

The plaintiffs, whose child sustained neurological injuries related to oxygen deprivation during delivery by a NICA-participating physician, filed a claim against the plan. An administrative hearing officer found that the child suffered permanent and substantial impairments of both a physical and mental nature, and allowed recovery. However, NICA appealed, arguing that while the child was physically impaired, he had no mental impairment insofar as he tested average or even above average on certain standardized tests. The appellate court agreed with this contention, but nevertheless held that the plaintiffs were allowed to recover, interpreting NICA to allow recovery upon proof of a "permanent and substantial injury, mental and/or physical."

On further appeal to the supreme court, the court interpreted NICA literally and held that it required both a physical and mental impairment. At the same time, the court held that the lower court had interpreted the term "mental impairment" in an unduly narrow manner. Merely because the child tested average or above average on standardized intelligence tests did not mean that he was not mentally impaired. In fact, the court held that the evidence supported the administrative determination that the child was mentally impaired, because even though he may have had an intelligence level in the normal range, his injuries would permanently prevent him from being able to learn in a normal manner, or to develop socially and vocationally as effectively as he would have been able to in the absence of those injuries. The court therefore approved a right of recovery against NICA.

Kukral v. Mekras, 679 So.2d 278 (Fla. 1996).

This case concerned the effect of a plaintiff's failure to strictly comply with the statutory requirements for a pre-suit investigation prior to filing of a medical malpractice action. The statute requires that a plaintiff provide notice to a defendant of intent to sue, and to furnish along with such notice a verified written opinion of a medical expert indicating the existence of grounds to believe that malpractice occurred. Suit cannot be filed until at least 90 days have elapsed after the giving of such notice.

In the instant case, the plaintiffs gave notice of intent to sue, but did not accompany the notice with the written expert opinion required by the statute. They did, however, later provide such a notice, and ultimately filed their action within the applicable statute of limitations. The defendants sought to dismiss the suit for lack of strict compliance with the pre-suit notice procedure. The court held that lack of strict compliance was not a jurisdictional defect requiring dismissal. It held that the purposes of the pre-suit notice requirement __ giving the parties notice of the basis of the plaintiff's claim and an opportunity to investigate prior to filing of suit __ were satisfied, where the plaintiffs did ultimately provide the verified written expert opinion contemplated by the statute (although not at the time of the initial notice), where the parties all had a fair opportunity to investigate the claim prior to filing of the suit, and where both the filing of the suit and all required notices were accomplished within the applicable statute of limitations.

The court also held that a pre-suit notice directed to one potential defendant was also effective to serve as notice to all other defendants bearing a legal relationship to the defendant receiving the notice. Therefore, a notice to an individual physician was held to also operate as notice to a professional corporation in which the noticed physician was an officer and agent.

Central Florida Regional Hospital, Inc. v. Wager, 672 So.2d 34 (Fla. 1996).

The decision in this case is essentially identical to Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So.2d 974 (Fla. 1996). The court answered the same certified question as in McKaughan in the same manner.

Acosta v. Richter, 671 So.2d 149 (Fla. 1996).

This case considered the extent of the evidentiary privilege for patient-physician communications created by Section 455.241(2), Florida Statutes. This statute generally provides that information disclosed to a physician by a patient for purposes of treatment is privileged and may not be disclosed by the physician, but provides an exception for "medical negligence action[s] when a health-care provider is or reasonably expects to be named as a defendant."

In the instant malpractice case, the defendant physician sought and obtained a court order allowing the defendant's attorneys to interview the plaintiff's current treating physicians regarding plaintiff's treatment and condition. This order was based upon an interpretation of the exception to the privilege as applying in any action wherein a health-care provider was sued for negligence. The plaintiff appealed, arguing that the exception only operated to allow a physician who was sued to discuss the plaintiff's treatment, for purposes of assisting in his defense, but did not operate as a waiver of the privilege as to other physicians. The supreme court agreed with this view of the statute, holding that it created a general privilege of confidentiality, and that although an exception existed with respect to information disclosed to a physician who was later sued, such a physician was not entitled to discover information that the plaintiff may have disclosed to other physicians in the course of treatment.

Pierre v. North Shore Medical Center, Inc., 671 So.2d 157 (Fla. 1996).

This case involved the same issue presented in Acosta v. Richter, 671 So.2d 157 (Fla. 1996). The court issued a brief per curiam decision following its decision in Acosta.

Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So.2d 974 (Fla. 1996).

This case involved the appropriate method and forum for determining whether or not an injury to a newborn for which compensation is sought constitutes a "birth-related neurological injury" for purposes of the Florida Birth-Related Neurological Injury Plan (NICA). The plaintiffs filed a tort suit seeking recovery for such injuries, which they contended had not been sustained during or immediately after the delivery process and therefore did not qualify as an injury compensable under NICA. The defendant, on the other hand, contended that the plaintiffs' sole remedy was under NICA, and requested that the plaintiffs' lawsuit be stayed pending an administrative determination of whether or not the injuries were compensable under NICA.

The court held that the determination of whether or not NICA provided the plaintiffs' exclusive remedy was to be made by the circuit court in the malpractice action rather than in a separate administrative proceeding initiated solely for that purpose. Although the circuit court might ultimately determine that the injury for which recovery was sought was indeed a "birth-related neurological injury" subject to NICA so that the court lacked authority to grant relief, this did not divest the court of jurisdiction to make such a determination in the first place. Thus, while a defendant sued for a birth-related injury may assert exclusivity as an affirmative defense, it cannot compel plaintiffs to litigate their claims in an administrative forum against their wishes.

Pate v. Threlkel, 661 So.2d 278 (Fla. 1995).

This case considered a physician's potential liability to children of a patient the physician is treating, for failing to warn of the genetically transferable nature of the patient's condition. The court held that the existence of a duty to warn of the transferable characteristics of any particular condition (here, medullary thyroid carcinoma) depended upon the nature of the condition in question, and whether a reasonably prudent health-care provider would deem it advisable to provide such notice.

The court further held that, in cases where there was a duty to warn, such duty extended to the children of the patient as well as to the patient himself, so that the physician could potentially be liable for injuries suffered by the patient's children as a result of the failure to warn. The court found such liability appropriate, despite the absence of any physician-patient relationship, in view of the foreseeable nature of such injuries to the patient's children. However, the court concluded that it was not necessary for the physician to actually warn the children directly in order to satisfy the duty owed to the children. Rather, a warning to the patient was deemed sufficient to discharge any duty to warn.

Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla. 1995).

Although it arose in the context of a medical malpractice suit, this is really more of a standard negligence case. The issues involved setoff and apportionment of amounts received from settling defendants, and there is nothing about case that is uniquely applicable to malpractice cases. Therefore, no extensive summary is provided.

Russo v. Sera-Tec Biologicals, Inc., 657 So.2d 1159 (Fla. 1995).

This was a case where the supreme court granted review because the district court of appeal had affirmed on the basis of another decision that was presently pending review by the supreme court. Having issued an opinion in the case upon which the lower court had relied, the supreme court remanded for further consideration in light of its opinion.

Amente v. Newman, 653 So.2d 1030 (Fla. 1995).

This case involved a malpractice claim by the plaintiffs for birth-related injuries sustained by their child. They alleged that these injuries were caused by the negligence of the defendant physician in utilizing a regular delivery bed, when he should have used a drop-down delivery bed in light of the mother's obesity. They sought to discover all of the records of the defendant concerning deliveries of "markedly obese" mothers during a two-year period, and the trial court ordered the defendant to provide such information, with the names of the patients in question redacted.

The supreme court approved the discovery ordered by the trial court. It held that the information sought by the plaintiffs was relevant to prove that use of the regular delivery bed caused the infant's injury, and/or to impeach the defendant's claim that he had done nothing wrong. It also held that disclosure of the defendant's records would not violate any rights of privacy of the defendant's other patients, so long as the records were redacted such that the identity of the patients could not be ascertained.

R.J. v. Humana of Florida, Inc., 652 So.2d 361 (Fla. 1995).

This case involved a malpractice claim by a plaintiff who was erroneously diagnosed as having the HIV virus. He alleged that he had suffered a number of injuries from this misdiagnosis before learning of the error, including hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and expenses incurred for medical care and attention. When he sued to recover for these injuries, the defendant contended that recovery was barred by the "impact rule," under which a plaintiff is barred from recovering for emotional distress caused by the negligence of another unless he can demonstrate that such emotional distress flowed from physical injuries the plaintiff sustained in an impact.

The supreme court held that although the impact rule applied to the plaintiff's claim, it did not necessarily preclude a right of recovery. The court noted that the impact rule had long been a part of Florida law, and reaffirmed its continuing validity. It refused to recognize an exception to the impact rule for medical misdiagnosis cases, suggesting that such an exception would result in exorbitant increases in the cost of medical care. It also held that the injuries alleged by the plaintiff were insufficient to satisfy the "physical injury" requirement of the impact rule.

However, the court held that the plaintiff should have further opportunity to attempt to allege a claim that would satisfy the impact rule. Although it indicated that mere touching during a medical examination or minimally intrusive medical procedures (such as the withdrawal of blood for testing) would not satisfy the requirement of a physical injury, it was possible that more invasive or painful treatments that the plaintiff had endured as a result of the HIV misdiagnosis (such as surgery or administration of caustic drugs having deleterious side effects) might be sufficient for this purpose.

JFK Medical Center, Inc. v. Price, 647 So.2d 833 (Fla. 1994).

This case considered the effect of a plaintiff's settlement with an allegedly negligent physician upon the plaintiff's right to recover from a hospital at which the allegedly negligent services were provided. The plaintiff had initially sued both the physician and the hospital, on the theory that the hospital was the physician's employer and thus liable for the physician's negligence. The plaintiff eventually settled with the physician, and agreed to dismiss with prejudice all claims against the physician. The settlement agreement expressly stated that it was not intended to affect the plaintiff's rights against the hospital.

The hospital nevertheless argued that the settlement with the physician relieved the hospital of liability as a matter of law. The hospital relied on cases holding that where an employee is found to have committed no actionable tort against an injured person, the employee's employer is immune from liability as a matter of law, on the theory that there is no negligence for which the employer could be held to be vicariously liable.

The supreme court rejected this argument, reasoning that the voluntary settlement of the plaintiff's claims against the physician was not the equivalent of a finding that the physician had committed no wrongful act against the plaintiff. Therefore, since the settlement agreement expressly stated that it was not intended to affect the plaintiff's rights against the employer-hospital, the plaintiff's rights against the hospital were not extinguished by the settlement. Upon proof that the physician was negligent, and that such negligence occurred in the course and scope of the physician's employment by the hospital, the hospital could be held liable to the plaintiff. In such circumstances, the court indicated, the hospital might have a right of indemnity against the negligent physician for amounts it had to pay to the plaintiff due to the physician's negligence.

J.B. v. Sacred Heart Hospital of Pensacola, 635 So.2d 945 (Fla. 1994).

This case involves the definition of what constitutes a "medical malpractice" claim. The plaintiff sued the defendant hospital, alleging that the hospital was negligent in asking the plaintiff to transport his brother, a patient at the hospital, to another facility without informing plaintiff that his brother had been diagnosed as HIV positive. During the transportation, the plaintiff's hand, which had multiple nicks and cuts, came in contact with bodily fluid from the brother's wound, and resulted in the plaintiff contracting the HIV virus.

The plaintiff sued the hospital, which sought dismissal on the ground that plaintiff had not complied with the pre-suit notice and screening requirements for medical malpractice claims, and because the action had not been filed within the two-year statute of limitations for medical malpractice claims. The court held that none of these requirements was applicable to the plaintiff's claim, as it did not involve a medical malpractice claim, which the applicable statutes defined as a claim arising out of the rendition (or failure to render) medical diagnosis, treatment, or care. Rather, the plaintiff's claim alleged negligence by the hospital in using plaintiff as a provider of services to the hospital, so that neither the medical malpractice statute of limitations nor the medical malpractice pre-suit notice and screening requirements were applicable.

Patry v. Capps, 633 So.2d 9 (Fla. 1994).

This case addressed the significance of a failure to strictly comply with the statutory pre-suit notice requirements for a medical malpractice action. The statute requires that a plaintiff intending to sue for medical malpractice must provide pre-suit notice to the defendant, and that this notice shall be served by certified mail, return receipt requested. In the instant case, the required notice was provided in a timely manner, but it was not served by certified mail, instead being hand delivered to the defendant. The defendant argued that this required dismissal of the plaintiff's claim.

The supreme court disagreed. It held that the prescription for certified mail was merely a technicality designed to insure that the fact and timeliness of service of the notice could be verified with minimal dispute. Since the instant defendant had acknowledged hand delivery of the notice in a timely manner, the statutory objectives had been accomplished, and the lack of strict compliance with the statutory procedures did not mandate dismissal of the plaintiff's claim.

Weinstock v. Groth, 629 So.2d 835 (Fla. 1993).

This case addressed the issue of who is a health-care provider within the meaning of Florida's medical malpractice statutes, which require pre-suit notices before filing of a malpractice suit against a health-care provider. The plaintiff filed suit against the defendant, a psychologist and marriage counselor, alleging that the plaintiff and her husband had consulted the defendant for therapy, and that the defendant had entered into a romantic affair with plaintiff's husband while still owing a professional duty to the plaintiff. The defendant moved for dismissal based on plaintiff's failure to comply with the statutory requirements for pre-suit notice.

The court held that the plaintiff was not required to comply with the statutory provisions for pre-suit notice, since her claim was not against a "health-care provider" to whom the statutory requirements were applicable. The court noted that the statutory definition of health-care providers did not include psychologists or mental-health counselors, and that the statutory scheme did not impliedly indicate any intention to include them. Therefore, since the plaintiff's claim was not against a health-care provider or another entity responsible for the conduct of such a health-care provider, the pre-suit notice requirements were not applicable.

Boyd v. Becker, 627 So.2d 481 (Fla. 1993).

This case addressed the issue of the timeliness of a medical malpractice claim. The Florida statutes provide for a two-year statute of limitations on such claims, and also provide that the limitations period is tolled for a period of ninety days following the giving of the statutorily-prescribed pre-suit notice, during which time the plaintiff is prohibited from filing suit. In this case, a question arose as to whether this ninety-day tolling period should be measured from the date the notice was mailed by the plaintiff, or the date the notice was received by the defendant. The plaintiff's lawsuit was timely filed if the tolling period ran from the date of receipt by the defendant, but not if the tolling period was computed on the basis of the date the notice was mailed by the plaintiff.

The court held that although there were conflicting provisions in the Florida statutes, measuring the tolling period from the date of receipt by the defendant would be more fair and consistent with the statutory scheme than the alternative interpretation argued for by the defendant. Accordingly, it held that a lawsuit filed within the statute of limitations, as tolled for a period of ninety days after the date of receipt of pre-suit notice by the defendant, was timely.

HCA Health Services of Florida, Inc. v. Branchesi, 620 So.2d 176 (Fla. 1993).

This is a per curiam opinion based on the court's earlier opinion in University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993).

Orlando Regional Medical Center v. Allen, 620 So.2d 993 (Fla. 1993).

This is a per curiam opinion affirming the decision of the district court of appeal. The supreme court had granted review based on conflict between the decision below and the decision of another district court of appeal on the same issue. Since the supreme court had recently reversed the conflicting decision in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), it affirmed the decision of the lower court in Allen.

Tanner v. Hartog, 618 So.2d 177 (Fla. 1993)

This case addresses the issue of when the two-year statute of limitations on a medical malpractice claim begins to run. Earlier cases had held that a cause of action for malpractice accrued, and the statute of limitations began expiring, at the time that the plaintiff knew or should have known that either the injury or the defendant's negligent act had occurred. In Tanner, the court reconsidered this rule in light of claims that it was unrealistic and tended to encourage litigation.

The court modified its earlier holdings by ruling that the plaintiff's "knowledge of the injury" as referred to in the above rule meant not only knowledge of the injury itself, but also knowledge that there was a reasonable possibility that the injury was caused by medical malpractice. In cases where the nature of the injury, standing alone, is such as to communicate the possibility of medical negligence, then mere knowledge of the injury is sufficient to trigger the statute of limitations. However, if the injury is such that it is likely to have occurred from natural causes, the statute of limitations will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

Kronman v. Norsworthy, 618 So.2d 186 (Fla. 1993).

This is a per curiam opinion affirming the decision of the district court of appeal. The supreme court had granted review based on conflict between the decision below and the decision of another district court of appeal on the same issue. Since the supreme court had recently reversed the conflicting decision in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), it affirmed the decision of the lower court in Kronman.

Hillsborough Community Mental Health Center v. Harr, 618 So.2d 187 (Fla. 1993).

This case involved application of the revised standard for determining when a plaintiff has "notice of an injury" so as to commence the statute of limitations period, as adopted in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993). The plaintiff sued for wrongful death of her son, alleging that the defendant mental-health facility negligently discharged him from under its care despite knowledge of his suicidal tendencies. The evidence established that the plaintiff was aware of her son's suicide more than two years before the lawsuit was filed, but that she had not learned of the defendant's conduct in discharging the son from its care until later. The supreme court held that under the newly-adopted standard of when a plaintiff has "notice of an injury" sufficient to begin the running of the statute of limitations, it was not clear as a matter of law that the plaintiff possessed such notice more than two years before the lawsuit was filed, so that it was error to dismiss the case on the basis of the statute of limitations without a full presentation of all the evidence.

University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993).

This case addressed the validity of a statute limiting the amount of non-economic damages recoverable in medical malpractice cases that are resolved by voluntary arbitration. The Florida statutes require a pre-suit notice and investigation process prior to the filing of any medical malpractice claim in court. As part of this process, the parties may elect to resolve their claim by arbitration. In such cases, the statutes impose certain limitations on the amount of damages that can be awarded, such as allowing recovery of only 80% of the plaintiff's actual lost wages and lost earning capacity, and placing a maximum recovery of $250,000.00 for non-economic damages, calculated on a percentage basis with respect to capacity to enjoy life (so that a finding that the claimant's injuries resulted in a 50% reduction of capacity to enjoy life would warrant an award of $125,000.00 at the most).

The plaintiff in Echarte argued that the statutory limitations on damages operated to deprive her of her constitutional right of access to the courts. The supreme court rejected this argument, however, finding that the limits on damages were a legitimate response by the legislature to a genuinely-perceived problem of escalating medical malpractice insurance premiums. The court further found that the statutory restriction of damages was offset by benefits that the statutes gave to plaintiffs, which benefits were perceived to be commensurate with the restrictions on recovery. These included the fact that the arbitration process in which the damage limitations would apply afforded an opportunity to resolve the plaintiff's claim more quickly and economically than could be done in a lawsuit, particularly since a defendant electing to go to arbitration has to agree not to deny liability, and more flexible standards of evidence are applicable in arbitration proceedings than court cases. Furthermore, the statutes require that any arbitration award must be paid promptly, and impose substantial penalties on a defendant for failing to do so. These benefits were held to justify the limitations on recovery available in arbitration cases, so that the statutory scheme was held to be constitutional.

Harriman v. Nemeth, 616 So.2d 433 (Fla. 1993).

Per curiam decision reversing lower court's decision on basis of supreme court's recent opinion in Kush v. Lloyd, 616 So.2d 415 (Fla. 1992).

Kush v. Lloyd, 616 So.2d 415 (Fla. 1992).

This case involved a claim by parents of a child born with serious deformities against the defendants for failure to diagnose an inheritable genetic impairment prior to the child's birth in time to allow the parents to avoid conception or terminate the pregnancy. The parents sought recovery for extraordinary expenses that would be necessary to care for the child during his life expectancy, and also for pain and suffering the parents and child would suffer during the child's lifetime due to his deformity.

The trial court dismissed most of the plaintiffs' claims, and the supreme court agreed that most, although not all, of these claims were not sustainable. First, the court held that all claims against defendants who had not provided any medical advice, care or treatment to the plaintiffs within the four-year period immediately preceding the filing of the complaint were untimely. Florida's "statute of repose" requires that a claim for medical malpractice must be brought within four years of the date of the act giving rise to the claim, regardless of when the plaintiff's injuries may have occurred or cause of action accrued. Thus, since the negligent misdiagnosis had occurred more than four years prior to the filing of the complaint, claims based on this misdiagnosis were untimely, even though the deformed child had not been born until shortly before the complaint was filed.

Considering the parents' claims against the defendants who had provided treatment within the four years prior to the complaint, the court held that the parents were entitled to recover for their own emotional injuries suffered as a result of giving birth to a deformed child. The court held that the "impact rule" (which generally prohibits the recovery of emotional damages caused by the negligence of another unless the plaintiff also suffers physical injuries) had no application to a claim of this sort, since emotional injuries were both an inevitable and predominate result of the wrongful conduct alleged. The court also held that the parents were entitled to recover, pursuant to their "wrongful birth" claim, for extraordinary expenses incurred in raising a deformed child (including expenses after the age of majority), over and above those that would have been incurred in raising a healthy child.

While recognizing a right of recovery under a "wrongful birth" claim, however, the court refused to allow a cause of action for "wrongful life" in favor of the deformed child. The court noted that philosophers throughout history had debated the value of human life relative to nonexistence, and held that courts were not capable of assigning a monetary value to a claim that a human being, even a deformed one, had been "damaged" by being born.

Hall v. Daee, 602 So.2d 512 (Fla. 1992).

Although this case involved a medical malpractice claim, the issues addressed on appeal were not uniquely applicable to such claims. The court considered the improper use of peremptory challenges on racial grounds.

Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla. 1992).

This case considered the definition of a medical malpractice claim for purposes of the statute of limitations. The plaintiff filed a negligence suit alleging that he had contracted the HIV virus due to a transfusion of blood provided by the defendant. The defendant argued that the claim was untimely under Florida's two-year statute of limitations on claims for medical malpractice.

The supreme court held that the plaintiff's claim did not allege a cause of action for medical malpractice, and that the timeliness of such claim should be measured by the four-year statute of limitations applicable to negligence claims rather than the two-year malpractice statute. The court noted that the two-year statute of limitations defined a claim for malpractice as one seeking recovery for death, injury, or loss arising out of any medical treatment, care, or diagnosis by any provider of health-care, and that the sale of blood to doctors and hospitals did not fall within the scope of this definition. In addition to the literal language of the two-year malpractice statute, the court perceived policy reasons for interpreting that statute narrowly. Thus, the four-year negligence statute was controlling, and the plaintiff's claim was timely.

Cruger v. Love, 599 So.2d 111 (Fla. 1992).

This case addressed the issue of the right of a plaintiff in a medical malpractice case to discover records concerning the defendant's professional background. The plaintiff sued the defendant-physician for negligence in treating the plaintiff's minor son's thumb. She sought to obtain copies of the defendant's applications for staff privileges at three area hospitals. The defendant objected to having to provide these documents, asserting they were confidential and privileged.

The supreme court upheld the defendant's claim of privilege. The Florida statutes regulate peer review and credentialling by hospitals and other health-care organizations. Each hospital is required to establish standards for eligibility for staff privileges, and procedures for evaluating applications for such privileges. Furthermore, in order to make peer review meaningful and thorough, the legislature provided a guarantee of confidentiality for the peer-review process. The court held that the defendant's application for hospital staff privileges was within the scope of that confidentiality. Although it was not a record produced by the peer-review committee, it was considered by that committee, and holding it to be within the scope of the privilege would serve the statutory purpose of encouraging full disclosure of facts to the committee.

Coy v. Florida Birth-Related Injury Compensation Plan, 595 So.2d 943 (Fla. 1992).

This case upheld the constitutionality of the Florida Birth-Related Injury Compensation Plan. The Plan is a program for compensation of birth-related injuries on a no-fault basis, subject to certain maximum limits. Physicians participating in the plan are granted immunity from tort liability. The plan is funded by assessments against participating obstetricians, as well as smaller assessments against all physicians (not just obstetricians). The instant case involved a challenge to the Plan by a non-participating physician who contended that he was unlawfully being compelled to participate in funding the Plan, even though he elected not to be a participant.

Although the court agreed with the plaintiff that the method used to fund the plan constituted a "tax" imposed against all physicians, it held that there was nothing illegal about this tax. The court found that there was a legitimate basis for the legislature's determination that the Plan was necessary, and that the method devised for funding the Plan was not irrational.

Union Central Life Insurance Co. v. Carlisle, 593 So.2d 505 (Fla. 1992).

This case addressed the extent to which a health insurer, which had paid benefits to the plaintiff for treatment of injuries allegedly caused by medical malpractice, is entitled to participate in a subsequent malpractice action by the plaintiff. The plaintiff was allegedly injured by malpractice occurring during the course of her birth. Her parents were insured under a group medical policy, which paid over $500,000.00 in benefits as a result of treatment necessitated by the alleged malpractice. The group health policy had a provision which provided for a refund in the event the insured recovered from a negligent third party. When the plaintiff subsequently sued the physician who committed the alleged malpractice, the group health insurer sought to intervene as a plaintiff.

The supreme court held that while unrestricted intervention was not required, the insurer should be allowed a more limited degree of participation in order to protect its interests. Thus, the court held that while the insurer would not be allowed to participate in the trial between the plaintiff and the allegedly negligent physician, it should be permitted to monitor the trial as a spectator and to make any motions necessary to protect its interests, and to have an opportunity to be heard prior to distribution of any judgment or settlement proceeds, as well as to appeal any decision adverse to its interests.

Ingersoll v. Hoffman, 589 So.2d 223 (Fla. 1991).

This case addressed the issue of whether, and under what circumstances, the defense of failure to provide pre-trial notice of a medical malpractice claim can be waived by a defendant. The Florida statutes require that a plaintiff who proposes to file a medical malpractice suit must first comply with certain pre-suit notice and investigation requirements. The failure to satisfy these requirements may be raised as a defense to a malpractice suit.

In the instant case, the plaintiff sued the defendant dentist without giving the pre-suit notice required by the statute. The defendant answered the complaint without raising the failure to provide the pre-suit notice as a defense. Thereafter, on the first day of trial, and after the time for providing notice had expired, the defendant first raised the issue of the plaintiff's entitlement to proceed with the lawsuit due to the failure to give pre-suit notice.

The supreme court held that the defense of failure to provide pre-suit notice was subject to being waived, and that the defendant was barred from raising the defense in this case by virtue of its failure to raise it in a more timely manner. The court held that the purposes for the pre-suit notice had been accomplished, and that it would be unfair to allow the defendant to defeat the lawsuit based on the lack of notice. The defendant was well aware of the existence and nature of the pending claim against him, and his failure to timely raise the defense, in responding to the plaintiff's complaint wherein it was alleged that the plaintiff had satisfied all prerequisites to a lawsuit, served to mislead the plaintiff at a time when it would still have been possible for the plaintiff to provide formal notice. Allowing the defendant to now amend his answer to raise this defense would result in unfair prejudice to the plaintiff.

Williams v. Campugnulo, 588 So.2d 982 (Fla. 1991).

This case addressed the significance of a failure to strictly comply with the pre-suit notice requirements. The plaintiff had filed suit without providing the pre-suit notice required by the statute. The defendant immediately raised the plaintiff's noncompliance as a defense, and ultimately moved for summary judgment based on this defense. The plaintiff admitted that no pre-suit notice had been provided, but argued that this was not a basis for dismissing the lawsuit, which had been filed within the applicable statute of limitations.

The supreme court held that the plaintiff's claim must be dismissed. Compliance with the statutory requirement for pre-suit notice is a condition precedent to the right to file a malpractice suit. Although such notice may be provided after the suit has already been filed (as long as it can be given within the statute of limitations), it was not possible for the plaintiff to do so in this case, since the limitations period had expired without the statutory notice being given. The court held that it could not dispense with the notice requirement without effectively rewriting the statute, which it refused to do.

Gup v. Cook, 585 So.2d 926 (Fla. 1991).

This case involved a relatively narrow issue concerning what a health-care provider is required to do in order to be entitled to the limitation-of-liability provided by the Florida statute for participants in the Florida Patients' Compensation Fund (the Fund). The plaintiff argued that the defendant was not entitled to the benefit of this limitation of liability, because it had not placed $100,000.00 for each claim against it in an escrow account.

The court rejected this argument, holding that a deposit in escrow was only one, but not the exclusive, way of demonstrating the health-care provider's' financial responsibility. The court held that providers could demonstrate such responsibility in other ways as well, such as by posting a surety bond or obtaining liability insurance in the necessary amounts, and that the defendant had done so in the present case.

Public Health Trust of Dade County v. Menendez, 584 So.2d 567 (Fla. 1991).

This case addressed the issue of what statute of limitations is controlling in a medical malpractice action brought against a hospital owned and operated by an agency of state or local government. The Florida statutes generally provide for a two-year statute of limitations on medical malpractice claims, but a separate statute specifies a four-year limitations period for tort claims against governmental defendants. The general malpractice statute also specifies a separate four-year "statute of repose," (which requires that a claim be brought within four years of the act giving rise to it, regardless of when the plaintiff's claim arises), but the limitations period applicable to claims against the government does not contain a separate period of repose.

In the present case, plaintiffs sued for negligence in connection with the delivery of their child at a county-operated public hospital. The defendant argued that the claim was barred by the four-year statute of repose applicable to malpractice claims, since it was not filed within four years of the date of birth, although it was filed within two years of the date the plaintiffs discovered that their child's condition might have been caused by negligence. The plaintiffs argued that the applicable statute was the four-year statute applicable to claims against governmental defendants, and since such statute contained no period of repose, their claim was timely. The supreme court agreed, and held that the statutes pertaining to claims against the government were controlling on the issue of the timeliness of plaintiffs' claim.

University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991).

/This case addressed the issue of when a plaintiff is deemed to have notice of a cause of action for purposes of starting the statute of limitations running.

The plaintiffs' three-year-old son was diagnosed with leukemia in 1970, but by 1971 the disease was in remission. At that time a doctor employed by the defendant began treating the child with a drug designed to maintain the remission, but soon thereafter the child began experiencing adverse symptoms. His condition continued to deteriorate, and ultimately he was rendered quadriplegic and severely brain-damaged. In 1982 the plaintiffs obtained certain medical records which indicated that the drug with which the child had been treated was a possible cause of his condition. They filed suit in December 1982.

The supreme court held that the complaint was not timely filed, as the plaintiffs were on notice of the child's injuries at least by the end of 1972, at which time the statute of limitations began to run. It was not necessary for the plaintiffs to be aware of both the injury and medical malpractice as its cause. The statute of limitations begins to run at the time that the plaintiffs knew or should have known of either the injury, or of the negligent act causing that injury. It is not necessary to show that they had knowledge of both to commence the limitations period.

The holding in Bogorff has been somewhat modified by the subsequent decision in Hillsborough Community Mental Health Center v. Harr, 618 So.2d 187 (Fla. 1993), in which the court held that knowledge of the injury alone may not be sufficient to commence running of the statute of limitations if the nature of the injury is such that it reasonably could be believed to have been caused by reasons other than negligence. The court in Harr did remark, however, that it did not believe that the newly-adopted revisions to the standard for knowledge of a claim would have made any difference under the facts of its previous decisions.

Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97 (Fla. 1991).

Although this was a medical malpractice case, the issues on appeal are not unique to such cases. Rather, the court addressed the propriety of allowing post-verdict interviews of jurors.

Sims v. Brown, 574 So.2d 131 (Fla. 1991).

This case addressed various questions concerning the relevance of evidence sought to be introduced in a malpractice case. The trial court had refused to allow admission of such evidence and the district court of appeal reversed. The supreme court held that the district court erred. Even though some of the evidence may have satisfied minimal standards of relevance, it was not demonstrated that the exclusion of such evidence constituted reversible error.

Goldschmidt v. Holman, 571 So.2d 422 (Fla. 1990).

This case addressed the issue of the allegations and proof necessary for a physician to be held liable for the negligence of another physician who was "covering" for the first physician during a period of his absence by responding to calls from the first physician's regular patients. Although the plaintiffs produced evidence that the "covering" physician had been guilty of negligence, the trial court refused to allow the jury to consider whether the first physician could be held liable for such negligence, as the plaintiff had failed to plead any theory for imposing such liability.

The supreme court agreed with the lower court. It held that the vicarious liability of one person for the negligence of another person is a separate cause of action, in addition to the cause of action against the negligent person. A plaintiff seeking to sue someone other than the actively negligent party must allege and prove some basis for holding the other person liable. The plaintiff had not done so in this case, and the trial court correctly denied the plaintiff's request to amend its complaint to add such claims, as such request came too late.

Hospital Corp. of America v. Lindberg, 571 So.2d 446 (Fla. 1990).

This case addressed the significance of a plaintiff's failure to comply with the statutory requirements of pre-suit notice and investigation prior to filing suit. The plaintiff had not complied with these requirements prior to filing suit, but served the pre-suit notice contemplated by statute on the same day the lawsuit was filed. This occurred within the two-year statute of limitations for malpractice actions. Subsequently, after the statute of limitations had expired, the defendant argued that the lawsuit should be dismissed because the plaintiff had failed to satisfy the notice and investigation requirements, which it contended were jurisdictional prerequisites to a malpractice suit.

The supreme court held that the statutory directive that the pre-suit notice and investigation occur prior to the filing of the lawsuit was not an absolute jurisdictional prerequisite. Although these requirements must be satisfied at some point, they can be satisfied after the lawsuit has been filed, as long as this is accomplished within the statute of limitations. Therefore, the trial court in this case should have allowed the plaintiff to amend his complaint to allege that the requirements had been satisfied, even though the original complaint did not contain such allegations.

Barron v. Shapiro, 565 So.2d 1319 (Fla. 1990).

This case addresses the question of when a medical malpractice cause of action accrues for purposes of the statute of limitations. The defendant had performed surgery on the plaintiff for the removal of malignant polyps in her colon in August 1979, and plaintiff immediately experienced problems with an infection. Although the infection was eventually brought under control by antibiotics, her eyesight deteriorated, and she became blind by the end of 1979. In January 1982, another doctor expressed the opinion that the infection was due to negligence of the defendant in failing to administer antibiotics prior to the surgery. Plaintiff filed suit soon thereafter.

The supreme court held that the lawsuit was not timely, since it was not filed within two years of when plaintiff became aware of her injury. The two-year statute of limitations begins to run when the plaintiff becomes aware of either the negligent act giving rise to his injury, or when she becomes aware of the injury itself. It is not necessary that she be aware of both in order for the statute to run. Since the plaintiff was aware of her blindness by the end of 1979, her claim had to be filed by the end of 1981.

The holding in Barron has been somewhat modified by the subsequent decision in Hillsborough Community Mental Health Center v. Harr, 618 So.2d 187 (Fla. 1993), in which the court held that knowledge of the injury alone may not be sufficient to commence running of the statute of limitations if the nature of the injury is such that it reasonably could be believed to have been caused by reasons other than negligence. The court in Harr did remark, however, that it did not believe that the newly-adopted revisions to the standard for knowledge of a claim would have made any difference under the facts of its previous decisions.

Wilson v. Wasser, 562 So.2d 339 (Fla. 1990).

This case addresses issues concerning the Florida Patient's Compensation Fund's liability for attorneys' fees.

The court held that an insurer was not liable for attorneys' fees under a policy provision obligating it to pay "costs." Accordingly, the Fund was liable for the amount awarded to the plaintiff in excess of $100,000.00, including attorneys' fees.

Tallahassee Memorial Regional Medical Center v. Meeks, 560 So.2d 778 (Fla. 1990).

This case addresses issues concerning the limited tort immunity afforded to health-care providers by the Florida Patient's Compensation Fund. The statute establishing the Fund provides that the tort liability of health-care providers participating therein shall be limited to $100,000.00, and that the Fund shall be liable for any amount in excess of that figure. The plaintiff in this case had failed to name the Fund as a defendant in the lawsuit, and the defendant health-care providers had also failed to add the Fund as a party, although they claimed entitlement to the benefit of the limited liability afforded by the statute establishing the Fund. The court held that the defendants were nevertheless entitled to the limitation of liability, so that it was improper to enter judgment against them in excess of $100,000.00.

The court also held that if a hospital qualified for the limitation of liability to $100,000.00, its employees also qualified for such limitation.

Florida Patient's Compensation Fund v. St. Paul Fire & Marine Insurance Co., 559 So.2d 195 (Fla. 1990).

This case concerned the right of the Fund, after paying a claim against a covered health-care provider, to recover from another health-care provider who was alleged to have been jointly negligent, along with the Fund's covered member, in causing the plaintiff's injuries.

The supreme court held that in order to recover against another health-care provider or its insurer, the Fund must comply with all requirements for a claim of contribution among joint tortfeasors. The court refused to allow the Fund to recover under the doctrine of subrogation, holding that to do so would effectively involve a judicial amendment of the contribution statute.

Florida Patient's Compensation Fund v. Scherer, 558 So.2d 411 (Fla. 1990).

This case addressed several procedural issues relating to malpractice claims against the Fund and covered health-care providers. The court held that although health-care providers participating in the Fund are granted a statutory exemption from tort liability in excess of $100,000.00, this exemption is subject to being waived, and that a health-care provider who failed to raise the issue of entitlement to such a limitation in the trial court could not raise the issue on appeal.

The court also held that a judgment against a health-care provider alleged to have been jointly negligent with another health-care provider must be reduced by the amount of a pre-trial settlement received by the plaintiff from the other party alleged to have been negligent, and that a statute authorizing the award of attorneys' fees in medical malpractice cases had no application to a cause of action arising prior to the effective date of the statute.

Florida Patient's Compensation Fund v. Moxley, 557 So.2d 863 (Fla. 1990).

This case addressed the amount of attorneys' fees that may be awarded to the prevailing party in a medical malpractice case. The plaintiff had entered into a contract with his attorney which specified that the attorney should be entitled to recover a specified percentage of the plaintiff's recovery, or such amount as the court may award as a "reasonable" fee, whichever was higher. The trial court had entered an attorney's fee award in an amount almost as large as the recovery obtained by the plaintiff, and the defendant argued that the amount specified as a contingent fee in the plaintiff's contract with his attorney was the most that could be awarded by the court as a "reasonable" fee.

The supreme court disagreed with this argument, holding that where the parties' agreement provided that the plaintiff was obligated to pay the higher of the specified percentage or an amount determined by a court to be a reasonable fee for the attorney's services, an award could properly exceed the percentage specified in the contingent fee agreement.

The court also held that the Fund was liable to pay the prevailing plaintiff's attorney's fees, rather than the health-care provider's liability insurer, where the insurance policy in question provided coverage for "costs," but did not explicitly cover attorneys' fees.

Kaufman v. MacDonald, 557 So.2d 572 (Fla. 1990).

This case addressed the issue of how much a court may award as an attorneys' fee in favor of a prevailing plaintiff in a medical malpractice case. Prior cases had established that a court could not award an amount greater than the amount the plaintiff was obligated to pay under his contract with his attorney. However, the contract in this case provided that the attorney should be paid a specified percentage of the plaintiff's recovery or such amount as a court might deem to be reasonable, whichever was greater.

The supreme court held that under such a contract, the percentage of the plaintiff's recovery specified as a contingent fee in the contract did not prevent the court from awarding a greater amount as a "reasonable fee" under the statute authorizing awards of attorneys' fees to prevailing plaintiffs. Therefore, the trial court could properly apply a contingency multiplier and award a reasonable fee which exceeded the amount of the fee which would be recoverable under the percentage alternative of the fee agreement.

Smith v. Sitomer, 550 So.2d 461 (Fla. 1989).

This case addressed the issue of who is responsible for paying the attorneys' fees of a prevailing plaintiff in a medical malpractice action. The Florida Patient's Compensation Fund is responsible for paying the attorneys' fees of a plaintiff who recovers more than $100,000.00 from a health-care provider covered by the Fund, except in cases where the health-care provider's liability insurance provides for payment of such fees.

In this case, the plaintiffs had recovered more than $100,000.00, and a dispute arose as to whether their fees should be paid by the Fund or the individual defendant doctor. The doctor's insurance contained a provision for payment of "costs" that were taxed by the court in favor of the prevailing party, but the supreme court held that this term did not encompass court-awarded attorneys' fees. Accordingly, the policy was held not to provide for payment of attorneys' fees, and the Fund was therefore liable for such fees.

Hillsborough County Hospital and Welfare Board v. Taylor, 546 So.2d 1055 (Fla. 1989).

This case addressed the limits on the amount recoverable in a medical malpractice suit against a hospital that is owned and operated by a local government body which has established a self-insurance fund. Although Florida has waived the traditional sovereign immunity of local governments from tort liability to a large extent, certain limitations remain on the right to recover from governmental defendants. One such restriction is that a dollar limitation is placed on the amount recoverable in tort cases, but an exception to this limitation is made in cases where the governmental defendant has liability insurance which covers the plaintiff's claim, in which case recovery is permitted up to the limits of the available liability coverage.

In this case, the plaintiff contended that the above exception should apply because the public hospital whose negligence had allegedly caused the plaintiff's injuries had established a self-insurance trust fund to cover tort claims against it. However, the supreme court rejected this argument, holding that the self-insurance fund, although designed to anticipate tort claims, was fundamentally different from a policy of insurance, which involves an undertaking by a third party to pay claims against the insured. Thus, the insurance exception was inapplicable, and the plaintiff's right to recover limited to the amount generally specified by law.

Spiegel v. Williams, 545 So.2d 1360 (Fla. 1989).

This case addressed the issue of who is responsible for paying the attorneys' fees of a prevailing plaintiff in a medical malpractice action. The Florida Patient's Compensation Fund is responsible for paying the attorneys' fees of a plaintiff who recovers more than $100,000.00 from a health-care provider covered by the Fund, except in cases where the health-care provider's liability insurance provides for payment of such fees.

In this case, the plaintiffs had recovered more than $100,000.00, and a dispute arose as to whether their fees should be paid by the Fund or the individual defendant doctor. The doctor's insurance contained a provision for payment of "all costs of defending a suit," but the supreme court held that this term only applied to the defendant's own expenses in the case, and did not encompass court-awarded attorneys' fees in favor of the plaintiff. Accordingly, the policy was held not to provide for payment of attorneys' fees, and the Fund was therefore liable for such fees.

Perez-Borroto v. Brea, 544 So.2d 1022 (Fla. 1989).

This case addressed the amount that may be awarded as attorney's fees to the prevailing party in a medical malpractice action. Florida law provides that the prevailing party in such an action is entitled to an award of such fees. Previous cases had held that the court could not award an amount greater than the prevailing party was liable to pay his own attorney under the terms of a contingent fee contract between the prevailing party and his attorney.

In this case, the prevailing defendant had a contract with its attorney which provided for payment on an hourly basis rather than on a contingent fee. Expert testimony indicated that the amount required to be paid under the contract was less than what was customarily charged for similar services, and that a higher amount could reasonably be charged for the attorney's services. Nevertheless, the supreme court held that the amount for which the defendant was liable to pay his attorney was the most that could be awarded by the court. It held that its prior decision limiting fee awards to the amounts specified by the parties' contract, although arising in the context of contingent fee agreements, was not limited in application to such agreements, but also was applicable to contracts for payment on an hourly or other time-based criterion.

Insinga v. LaBella, 543 So.2d 209 (Fla. 1989).

This case involved the tort liability of a hospital for its negligence in allowing incompetent physicians to exercise staff privileges at the hospital. Physicians who enjoy hospital staff privileges are generally regarded as independent contractors rather than employees of the hospital, as a consequence of which the hospital is generally not responsible for negligence by the physicians in the course of treating their patients.

In this case, the plaintiff contended that not only was the treating physician negligent, but that the hospital was also itself negligent in granting staff privileges in the first place. The treating physician was not even in fact a licensed physician, but was a fugitive from justice who had assumed the identity of a deceased Italian doctor. The plaintiff alleged that the hospital should have discovered this fact if it had exercised reasonable care in processing the application for staff privileges, and was therefore negligent in allowing the so-called physician to practice at the hospital.

The supreme court held that the hospital could potentially be liable under such a theory. The hospital had a duty to select and retain only competent physicians on its staff of those authorized to practice at the hospital, and could be liable for negligence of staff physicians while practicing at the hospital if it was shown to be guilty of negligence in granting them staff privileges or allowing them to retain such privileges.

Carr v. Broward County, 541 So.2d 92 (Fla. 1989).

This case concerned the application and validity of the "statute of repose," which requires that all claims for medical malpractice must be filed within seven years of the date when the act of malpractice occurred, even in cases where fraud or misrepresentation designed to conceal the defendant's liability is demonstrated. Florida law generally requires that a claim for malpractice must be filed within two years of the date when the cause of action accrues, which is considered to occur at the time when the plaintiff knew or should have known of his rights against the defendant. However, in addition to this two-year statute of limitations, Florida also has a "statute of repose," which requires that the claim must be brought within a certain period of time after the acts giving rise to the right of action, regardless of whether or not the plaintiff knows of his rights. This period of repose is generally four years, but is extended to seven years in cases where fraud or intentional misconduct designed to mislead the plaintiff is shown.

In this case, the plaintiffs had a baby which was diagnosed at birth as suffering from severe brain damage. Years later, they discovered that the child's condition could arguably be attributed to negligent care during the childbirth, and they filed suit. The lower courts dismissed the claim, since it was filed outside the seven-year period allowed by the statute of repose even in cases of fraud, and the plaintiffs appealed, arguing that the statute of repose could not constitutionally be applied to bar a cause of action before it ever even accrued. However, the supreme court disagreed, holding that the statute was a valid exercise of the legislature's authority to deal with a perceived public crisis of skyrocketing medical costs. Thus, the plaintiffs' claim was untimely, even assuming that they could not reasonably have disc

Gershuny v. Martin McFall Messenger Anesthesia Professional Association, 539 So.2d 1131 (Fla. 1989).

This case addressed the authority of a court to award attorneys' fees to the prevailing party in a negligence action against a nurse-anesthetist and the professional association that employed her. A statute authorizes the award of such fees in any action seeking damages due to the negligence of "any medical or osteopathic physician, podiatrist, hospital, or maintenance organization."

In this case, the plaintiffs alleged negligence by a nurse-anesthetist, and also sought to hold liable the professional association which employed her. The jury found that the nurse was not negligent, and the defendant professional association requested an award of attorneys' fees, arguing that even though the nurse did not fit within the category of defendants mentioned in the statute authorizing attorneys' fee awards, the presence of the professional association as a defendant was a sufficient basis for an award of attorneys' fees, since the association was owned by physicians.

The supreme court disagreed, and held that the court had no authority to award fees in this case. Although the professional association was owned by physicians as shareholders, it is considered as a separate legal entity from those shareholders. The physicians could not be held personally liable for the negligence of the nurse-anesthetist unless they were directly supervising her conduct, and the plaintiff had made no such allegation in this case. Therefore, this case did not involve a malpractice claim against a physician, and the statute authorizing attorneys' fee awards in such cases did not apply.

Menendez v. North Broward Hospital District, 537 So.2d 89 (Fla. 1988).

This case involves the requirement of notice under the waiver-of-sovereign-immunity statute, and addresses no issues uniquely applicable to medical malpractice cases.

Public Health Trust of Dade County v. Diaz, 529 So.2d 682 (Fla. 1988).

This case involved issues relating to dismissal for lack of prosecution, and addresses no issues uniquely applicable to medical malpractice cases.

Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla. 1988).

This case addressed the amount that may be awarded as attorney's fees to the prevailing party in a medical malpractice action. Florida law provides that the prevailing party in such an action is entitled to an award of such fees. The court held that the amount that could be awarded pursuant to this statutory authority could not exceed the amount that the prevailing party was obligated to pay to his own attorney under the contract between the prevailing party and the attorney. The court further held that this limitation applied to contingent fee contracts that had been entered into prior to an earlier decision that had established this as a limitation applicable to court awards of attorneys' fees in general.

Thus, in this case, the plaintiffs, who had prevailed at trial and recovered an award of damages of $5,000.00, could recover at most an award of $2,000.00 as attorneys' fees, since the plaintiffs had a contract to pay their attorney 40% of any amount recovered as damages. This limitation applied even though the court might be of the opinion that a higher fee award would be reasonable under the circumstances, and even though the contingent fee agreement had been entered into prior to the supreme court's earlier decision limiting statutory fee awards to the amount specified in the contract between the party and their attorney.

Higley v. Florida Patient's Compensation Fund, 525 So.2d 865 (Fla. 1988).

This case addressed the right of the Florida Patient's Compensation Fund to recover from a negligent hospital employee whose negligence led to a claim against the hospital which the Fund has paid. The plaintiffs sued the hospital to recover damages for the death of their infant child. Their claim was based on negligence of a nurse employed by the hospital, although the nurse was not named as a defendant. The Fund settled the case on behalf of the hospital, which was a participant in the fund, and then sought to recover from the nurse.

The court held that the nurse herself was entitled to the protection afforded by the Fund, and that the Fund therefore could not seek to recover from the nurse. Although the Fund generally provides protection only to health-care professionals, and although nurses do not fall within this category, the Fund was applicable to the nurse in this case since it explicitly applies to employees of covered hospitals or ambulatory surgical centers. Thus, the nurse was essentially an insured of the Fund, and it could not seek to recover from its own insured for amounts it had paid on her behalf.

St. Joseph's Hospital v. Coxon, 515 So.2d 179 (Fla. 1987).

This is a per curiam decision remanding for disposition in accordance with Florida Patient's Compensation Fund v. Bouchoc, 514 So.2d 52 (Fla. 1987).

Florida Patient's Compensation Fund v. Bouchoc, 514 So.2d 52 (Fla. 1987).

This case addressed the issue of who is responsible to pay the attorneys' fees of a prevailing plaintiff in a medical malpractice action. The Florida Patient's Compensation Fund was established to protect health-care providers from the consequences of catastrophic verdicts in malpractice cases. It pays all judgments against its members in excess of $100,000.00, and the members are responsible for obtaining private insurance of at least $100,000.00, or demonstrating their ability to pay a judgment in this amount.

In this case, the plaintiffs had recovered more than $100,000.00, and the court had also entered an attorneys' fee award in favor of the plaintiff, as authorized by statute. A dispute arose as to whether these fees should be paid by the Fund or the individual defendant doctor's insurer. The court held that, since the Fund was designed to pay all judgments against its members in excess of $100,000.00, it was logical to impose on it the burden of paying such fee awards. Thus, the Florida Patient's Compensation Fund is responsible for paying the plaintiff's attorneys' fees, except in cases where the health-care provider's liability insurance provides for payment of such fees.

Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987).

This case addressed certain evidentiary issues in a malpractice action involving alleged surgical improprieties. The plaintiff had undergone tubal ligation surgery, which is designed to sterilize the patient, at the defendant hospital. A year and a half later, she suffered a ruptured ectopic pregnancy which nearly caused her death. She and her husband sued, alleging that the operation had been negligently performed, and that she had not been given adequate pre-surgery notification of the possible consequences of the procedure.

As to the plaintiff's claim that the defendants had failed to obtain an "informed consent" to the surgery, the court held that a written consent form signed by the plaintiff was sufficient to raise a rebuttable presumption that plaintiff had made an informed consent. However, the court noted that this presumption was not conclusive, and was subject to being overcome by other evidence which the plaintiff might produce on this issue.

With respect to the plaintiff's claim that the surgical procedure was negligently performed, the court held that the absence of any surgical notes of the type which are usually maintained by hospitals was sufficient to create a rebuttable presumption of negligence. However, the court disapproved the use of a conclusive presumption of negligence in such cases, even when it is shown that the absence of any such records was due to intentional misconduct by the defendant. In such cases, the jury is certainly free to draw adverse inferences against the defendants based on the absence of any surgical notes, but should not be compelled to do so.

Parikh v. Cunningham, 493 So.2d 999 (Fla. 1986).

This case upheld the validity of a statute providing that informed consent should be conclusively presumed on the basis of a written and signed consent form if other conditions are met as well, but held that the statutory presumption was not applicable on the basis of the facts of the case.

This case has been effectively overruled by legislative changes which have abolished the conclusive presumption of informed consent. Under current law, a written and signed consent form gives rise to a rebuttable presumption of informed consent, at the most.

Florida Patient's Compensation Fund v. Tillman, 487 So.2d 1032 (Fla. 1986).

This case addressed several procedural issues arising out of a claim of negligence in connection with the surgical insertion of a prosthetic device in the plaintiff's knee. The device that was put into the plaintiff's knee contained mismatched components, as a result of which the plaintiff experienced post-surgery complications and had to undergo surgery again. He sued the surgeon and the hospital where the surgery was performed, and later requested and obtained leave to add the Florida Patient's Compensation Fund as an additional defendant. The defendants contended that the claim was barred by the statute of limitations, but the trial court allowed the jury to determine when the plaintiff learned of his right of action against the defendants, and they found that he had learned of it within two years prior to the filing date, such that the claim was timely filed. The court entered judgment against the surgeon and hospital for the full amount of damages found by the jury, ruling that a statutory limitation of the liability of such defendants to $100,000.00 was unconstitutional.

The supreme court held that the statute of limitations issue was properly submitted to the jury. The statute of limitations applicable to medical malpractice claims in Florida is two years. Although there was evidence indicating that the plaintiff knew or should have known of his cause of action more than two years prior to the date of filing, there was also evidence indicating that he had learned of it less than two years before filing. The jury could properly conclude that the case was filed within two years after the cause of action accrued. However, the Fund's statute-of-limitations defense should have been upheld, since the Fund was not added as a defendant until after the statute of limitations had expired.

The court also held that it was error to enter judgment against the surgeon and hospital for the full amount of damages found by the jury. The Florida statutes limit the malpractice liability of doctors and hospitals participating in the Fund to $100,000.00, with the balance of any judgment to be paid by the Fund. This limitation of liability is valid, and should have been enforced by the trial court. Thus, the judgments against the surgeon and hospital should have been limited to $100,000.00.

Taddiken v. Florida Patient's Compensation Fund, 478 So.2d 1058 (Fla. 1985).

This case addressed issues concerning the timeliness of a malpractice claim against the Florida Patient's Compensation Fund. The Florida statutes limit the malpractice liability of doctors and hospitals participating in the Fund to $100,000.00, with the balance of any judgment to be paid by the Fund, and provide for a two-year statute of limitations on a medical malpractice claim.

In this case, the plaintiffs timely filed their claims against the defendant health-care providers. Subsequently, and more than two years after the cause of action accrued, the plaintiffs sought leave to add the Fund as a defendant. The court held this attempt was untimely. The plaintiffs' claim against the Fund was subject to the same statute of limitations as the claim against the health-care providers. Thus, the claim against the Fund was barred, even though the claim against the health-care providers had been filed in a timely manner.

Florida Patient's Compensation Fund v. Von Stetina, 474 So.2d 783 (Fla. 1985).

This case addressed issues concerning the validity of the statute establishing the Florida Patient's Compensation Fund and the admissibility of certain evidence. The plaintiffs sued to recover damages for injuries caused by the temporary loss of oxygen to a patient who was on a ventilator, and who, as a result of the oxygen loss, suffered brain damage and permanent disability. The jury returned a verdict in excess of $12 million, and the court entered judgment against the Fund for this entire amount, but only entered judgment against the defendant health-care providers for $100,000.00.

The supreme court held that the statutory scheme under which the liability of health-care providers participating in the Fund was limited to $100,000.00, with the Fund being responsible for paying any award in excess of that amount, was valid. The court found the statutory scheme to be a legitimate legislative response to a perceived crisis in the cost of medical malpractice insurance, and held that in any event it did not limit the substantive rights of malpractice claimants, but only affected the manner in which their judgments were to be paid.

The court also held that it was improper to admit into evidence an article from a nurse's training journal which purported to describe "a day in the life" of a quadriplegic patient. This article was not relevant to any issue in the case, and was intended solely to inflame the emotions of the jury. The court perceived a significant likelihood that the verdict had been the product of such emotional considerations, and therefore set aside the judgments in favor of the plaintiff and returned the case to the lower court for a new trial.

Forlaw v. Fitzer, 456 So.2d 432 (Fla. 1984).

This case addressed the issue of the liability of a physician, who prescribed prescription drugs to a person known to be addicted to such drugs, for injuries sustained by a third party in an automobile accident caused by the negligence of the person to whom the drugs were prescribed while operating a motor vehicle under the influence of the prescription drugs. The court held that although a physician could be liable for prescribing a controlled drug in bad faith or outside the scope of his professional practice, the allegations of the plaintiff's compliant did not allege such conduct. Rather, the plaintiff merely alleged that the defendant had prescribed quaaludes to a patient he knew to be addicted to them. The court held there was nothing unlawful or wrongful per se about prescribing drugs to an addicted person, and that the plaintiff had otherwise failed to allege any basis for imposing liability on the defendant.

Holly v. Auld, 450 So.2d 217 (Fla. 1984).

This case addressed the scope of an evidentiary privilege created by statute for statements made in connection with proceedings of a medical-review committee. By statute, such statements, as well as the records of the proceedings of the committee itself, are prohibited from discovery or introduction into evidence in any civil action arising out of the subject matter of the committee proceedings. In this case, the plaintiff-physician, who had been the subject of an investigation by a medical-review committee, sought to sue the defendant for defamation as a result of alleged slanderous statements made by the defendant to the committee. The defendant asserted the statutory privilege, but the plaintiff argued that the privilege applied only in medical malpractice cases, and had no application to a defamation suit.

The supreme court held that there was nothing in the language or purpose of the statute which indicated that the privilege created thereby should be limited in application to medical malpractice cases. The objective of the statute was to encourage candor in communications to medical-review committees, and the accomplishment of this end required that such statements be privileged regardless of whether the subsequent action wherein they were sought to be used involved a malpractice claim against the physician who was the subject matter of the committee's investigation or a defamation suit against the person who had made the statements. Thus, the court held that the statutory privilege applied in the present defamation case, and the defendant's claim of privilege was upheld.

Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984).

This case addressed the question of what proof a plaintiff in a medical malpractice case must produce to establish that she was injured as a result of the defendant's alleged malpractice. The plaintiff sued for wrongful death, alleging negligence by the hospital staff in failing to promptly diagnose a ruptured abdominal aortic aneurysm in the decedent, who died approximately 45 minutes after being admitted to the hospital emergency room, during which time he repeatedly complained of abdominal pain. The plaintiff produced expert testimony that the conduct of the staff in failing to ascertain the decedent's condition was a violation of prevailing standards of professional conduct, but failed to produce any evidence to the effect that if the hospital staff had identified the decedent's condition more quickly, it was more probable than not that his life could have been saved.

Nevertheless, the plaintiff prevailed at trial, with the jury awarding a verdict based on a "loss of a chance" to survive. The hospital appealed, arguing that it was not enough to show that the decedent's chances of living were less because of the defendant's negligence than they would have been in the absence of such negligence. The supreme court agreed, holding that the plaintiff in a medical malpractice case must prove not only a breach of the required standard of care by the defendant, but also that such breach was a proximate cause of injury to the plaintiff. The latter requirement, the court said, required proof that the defendant's conduct "more likely than not" caused injury to the plaintiff. In a wrongful death case, this meant that the plaintiff had to show that he would probably have survived in the absence of the defendant's negligence. The plaintiff in this case had failed to meet this standard, since the evidence failed to show a greater than even chance that the decedent would have lived, even if the defendant had diagnosed his condition as soon as it was reasonably possible to do so. The plaintiff had only shown a diminished chance of survival due to the defendant's negligence, but Florida does not allow a cause of action for loss of a chance to survive.

Beisel v. Lazenby, 444 So.2d 953 (Fla. 1984).

This is a case addressing the required proof of proximate causation in a medical malpractice case. The plaintiff sued alleging that he had lost the use of an eye due to the negligence of the defendant. However, the plaintiff's expert witness could not state that any of the treatments he claimed should have been given, but were not, would have probably, or more likely than not, saved the use of the plaintiff's eye. Accordingly, the plaintiff had failed to submit sufficient evidence of causation to support a jury verdict in his favor, and the trial court therefore properly ruled in favor of the defendant as a matter of law.

Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

This case addressed the constitutionality of the statutory scheme creating the Florida Patient's Compensation Fund, which limits the tort liability of participating health-care providers to certain specified limits, and provides that the Fund shall be responsible for payment of any judgment against such providers in excess of the specified amounts. The supreme court in this case upheld the statutory scheme against several constitutional challenges, including claims that it involved an unlawful delegation of legislative authority to administrative agencies, and that it created certain impermissible classifications in violation of the requirement of equal protection of the laws.

Chenoweth v. Kemp, 396 So.2d 1125 (Fla. 1981).

This case primarily involved issues relating to the constitutionality of statutes dealing with medical malpractice and insurance, with the court upholding those statutes as against several arguments that they were invalid for various reasons. However, in the course of its opinion, the court also addressed certain evidentiary questions.

It held that an expert need not be certified or be a specialist in the same specialty as the defendant in a malpractice case in order to offer expert testimony on the issue of whether the defendant's conduct complied with prevailing standards of care. As long as the expert, by education, training, experience, or knowledge, is competent to testify on an issue relevant to the case, the expert should be allowed to testify, even if the expert is not certified in the same field as the defendant.

The court also held that the plaintiff had waived the right to complain that the introduction into evidence of certain findings and conclusions of a mediation panel was erroneous. Although the admission of such evidence may have been contrary to the applicable statutes, the plaintiff had failed to promptly object to such admission at the trial itself and therefore could not complain on appeal.

Balbontin v. Porias, 215 So.2d 732 (Fla. 1968).

This case addressed the standard of conduct which a plaintiff must prove in order to prevail in a medical malpractice case. The plaintiff here alleged that the defendant had negligently, carelessly, and recklessly, and without sterile preparation, operated on the plaintiff's thumb, and that as a result a severe infection arose in the thumb which caused extensive damage and deformity, and that the defendant's conduct failed to meet prevailing standards of care for surgical intervention by a physician in the community. The court held that such allegations were sufficient to state a cause of action for malpractice, although the complaint suffered from certain technical deficiencies in certain respects.

Stauf v. Holden, 94 So.2d 361 (Fla. 1957).

In this case the supreme court disapproved of an instruction to the jury which suggested that the jury could properly consider the significance of a verdict against the defendant physician upon the defendant's professional character and reputation. The court stated that the issue in a malpractice case is whether the defendant committed negligence which resulted in injury to the plaintiff. To the extent that the instruction in question may have indicated to the jury that they were free to "balance" the potentially adverse consequences to the defendant of a finding of negligence against the evidence of negligence in rendering their verdict, the instruction was contrary to law. The court could not presume that the jury had disregarded such instruction, or that the instruction had not affected their deliberations, even in light of all other instructions given. Therefore, the court reversed a judgment in favor of the defendant and sent the case back to the lower court for a new trial.

Hill v. Boughton, 146 Fla. 505, 1 So.2d 610 (1941).

This case addressed the standard of conduct which a plaintiff must prove in order to prevail in a medical malpractice case. The plaintiff in this case alleged generally that the defendant physician had failed to diagnose her condition and to cure her of her malady, but did not identify the condition from which she suffered, or allege that she could have been cured with appropriate treatment. The court held that the complaint failed to state a cause of action for medical malpractice.

In order to state such a cause of action, the plaintiff must plead that the defendant failed to exercise that degree of care common to physicians in the community, and that as a result of the defendant's failure to exercise the required degree of care, the plaintiff had suffered injuries which would not have arisen if the defendant had acted in accordance with the prevailing standard of care. Merely alleging that the defendant had failed to properly diagnose the plaintiff's condition or to cure her did not satisfy the plaintiff's obligation, absent an allegation that the defendant could have properly diagnosed or cured the plaintiff if he had exercised proper care. For all the complaint revealed, the defendant may have provided the best possible treatment for the plaintiff's condition. A physician is not a guarantor of the results of the treatment prescribed, and the failure to effect a cure does not give rise to any presumption of negligence.

Saunders v. Lischkoff, 137 Fla. 826, 188 So. 815 (1939).

This case addressed the standard of conduct which a plaintiff must plead and prove in order to prevail in a medical malpractice claim. The plaintiff alleged that he had consulted with the defendant (an eye, ear and throat specialist) for purposes of diagnosis and treatment of an eye condition from which the plaintiff was suffering. The plaintiff had seen the defendant several times each week for a period of several months, but the treatments prescribed by the defendant had proved ineffective, and the plaintiff's condition had continued to deteriorate.

The supreme court held that the plaintiff's allegations stated a cause of action for malpractice, and that the evidence supporting the plaintiff's claim was sufficient to support a verdict in his favor. A plaintiff suing for medical malpractice must show that the defendant's conduct fell below the level of care commonly exercised by physicians, and that the plaintiff suffered injury as a result of such lack of care that would not have resulted had the defendant acted in accordance with prevailing standards of conduct. A physician may be liable for failure to properly diagnose a condition if exercising the level of care commonly employed by physicians would have disclosed the nature of the plaintiff's condition. Furthermore, once a physician undertakes to assume responsibility for the diagnosis and treatment of a patient, he generally has a duty to continue providing care to the patient, and may be liable for failing to provide such continuing care absolutely or for failing to exercise due diligence in providing such treatment. A physician who, having undertaken to provide care to a patient, abandons responsibility for treating such patient without providing to the patient notice and an opportunity to procure other medical treatment may be liable for such disregard of duty.

Foster v. Thornton, 125 Fla. 829, 170 So. 459 (1936).

This case addressed several issues concerning the nature and extent of evidence necessary to prove medical malpractice by a health-care provider. The plaintiff sued the defendant chiropractor for the wrongful death of his wife, who had consulted with the defendant concerning headaches she was suffering. Immediately after receiving treatment from the defendant, she was seized with severe head and neck paid, and experienced nausea and vomiting. She died about two weeks later, being in an unconscious or semiconscious condition during the interim. The plaintiff produced expert testimony that the decedent's death was caused by a hemorrhage of her sinus attributable to excessive force negligently applied by the defendant in manipulating her neck. The defendant disputed this, but the jury agreed with the plaintiff and returned a verdict for damages.

The defendant appealed, arguing that the evidence was not sufficient to establish his liability, but the supreme court disagreed. Although it held that the doctrine of res ipsa loquitur did not apply in medical malpractice cases, and that negligence of a health-care provider could not be inferred solely from the existence of injury or death to a patient, a finding of negligence could be based in whole or part on circumstantial evidence which by its nature was sufficient to raise a presumption of negligence. In this case, there was such circumstantial evidence, which, together with the plaintiff's expert testimony, was sufficient to support the jury verdict. Plaintiff's experts had testified that the d