Opinion
No. 5D99-116.
Opinion filed October 27, 2000.
Administrative Appeal from the Division of Administrative Hearings.
Jennifer S. Carroll of Law Office of Jennifer S. Carroll, P.A., West Palm Beach, for Appellant.
Julie H. Littky-Rubin and Lake Lytal, Jr., of Lytal, Reiter, Clark, Fountain Williams. L.L.P., West Palm Beach, for Appellees.
ON MOTION FOR REHEARING
We grant rehearing and substitute the following opinion.
Mary Chester asserted that her husband died as the result of medical malpractice and blamed both Dr. Doig and Halifax Hospital (through its staff). Chester settled with Halifax for $150,000 during pre-suit proceedings and then arbitrated with Doig and recovered $507,321; $250,000 of this award was for non-economic damages. The issue is whether the Halifax recovery should be offset by the Doig award and, if so, to what extent.
Chester suggests that we should construe section 766.207(7)(b), Fla. Stat., as permitting the arbitration panel to consider non-economic damages to be greater than $250,000 for the purpose of applying an offset or, at least, we should apply the formula for deciding the offset approved in Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla. 1995). In addition, it now appears that we must consider the consequence of St. Mary's Hospital, Inc. v. Phillipe, 25 Fla. L. Weekly S501 (June 30, 2000), as it relates to this claim. Legislation is protected from unwarranted judicial construction primarily by judges adhering to their oaths. We may not construe a statute unless we first find it ambiguous and even then our efforts must be to "find" legislative intent. We may not ignore a statute altogether unless we first find it unconstitutional. The constitutionality of this statute is not at issue. See University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993).
Here, the legislative policy seems clear even if not universally popular. The policy is to encourage parties to arbitrate medical malpractice claims. To induce the claimants to arbitrate, they are given a speedy resolution of their claims and awarded attorney's fees, all costs of arbitration and interest on accrued damages. To induce the defendants to arbitrate, they are relieved of punitive damages and assured that there will not be an award of greater than $250,000 in non-economic damages per incident. By making the non-economic damage award joint and several, the statute makes it clear that this cap applies to all defendants engaging in the arbitration proceeding. In addition, the statute does not provide that any non-economic damage award beyond the $250,000 permitted by the cap may be recovered from other defendants by choosing a different remedy. To hold otherwise would totally frustrate the policy behind voluntary arbitration when multiple defendants are available. Thus, although the supreme court has in St. Mary's Hospital construed the legislative purpose of the statute to mean a cap of $250,000 per incident per claimant, it has not construed "per incident" to mean "per action against those also responsible for the injury."
This arbitration proceeding sets three limits on the amount of claimant's recovery for non-economic damages "per incident." If neither party seeks arbitration, then the action proceeds as any civil lawsuit limited only to the jury verdict on non-economic damages. See Section 766.209(2). If both parties agree to arbitration, there is a limit of $250,000 for non-economic damages. See Section 766.207(7)(b). There is a $350,000 limit for non-economic damages if the claimant refuses to arbitrate and instead proceeds to trial. See Section 766.209(4)(a). In any event there is no limit on economic damages. Therefore, if a claimant suffers damages as a result of medical malpractice, he or she has an option of remedies: if no demand for arbitration is made by the medical provider, proceed to trial for whatever the jury might award for non-economic damages; if a demand for arbitration is made, reject it and proceed to trial for a maximum award of $350,000 for non-economic damages; or accept arbitration with a limit of $250,000 in non-economic damages. But whatever option is chosen, claimant is entitled to only one complete recovery of the non-economic damages awarded. This is an easy application if there is only one medical provider involved or if the same remedy is sought against all potential defendants; it becomes more complicated if different remedies are sought.
If the claimant offers to arbitrate and the defendant refuses, then the claimant is entitled to all non-economic damages returned by the jury together with attorneys fees.
Here, there were two potential defendants and a mix and match remedy was chosen. In her "jury limits" action against Halifax (neither requested arbitration), Chester and the hospital settled for $150,000. For her claim against Doig, she agreed to binding arbitration with its attendant advantages but saddled with a limit of $250,000 for non-economic damages, which was awarded.
The arbitration provision requires that the non-economic damages be offset by all collateral source payments. The Halifax settlement does not meet the definition of collateral source payments set out in section 766.202(2), Fla. Stat. Chester agreed below that the settlement should be offset against any non-economic damages but only if the $250,000 cap was ignored. In other words, she claims that her non-economic losses may exceed the cap and that although she admits she cannot receive an award for non-economic damages in arbitration greater than the cap, her offset should come from her true non-economic damages, whatever they are, and her award should be the difference not to exceed the cap. The arbitration panel awarded $250,000 in non-economic damages and there is no indication that it would have awarded more "but for" the cap.
Because the arbitration panel determined that the statute setting up the arbitration proceeding used herein did not specifically permit an offset for settlements with those other defendants allegedly responsible for the injuries at issue, it refused to consider sections 46.015(2) and 768.041, Fla. Stat. Although we understand the panel's confusion (these statutes direct the court to reduce the judgment by the amount of any settlement and makes no reference to an "arbitration panel"), the intent of the legislature is to prevent double recovery for the same damages. Reference to "the court" does not indicate that a double recovery is appropriate if done by an arbitration panel. Wells v. Tallahassee Memorial Regional Medical Center, Inc., recognized that the general offset statutes do apply in medical malpractice actions. Wells, however, in a case in which the jury decided the percentage of fault, held that the comparative fault provisions of section 768.81(3) would apply. Here, there was no determination made by anyone as to the percentage of fault between the doctor and the hospital. But the maximum award for non-economic damages made by anyone was $250,000.
Under the facts of this case, Chester can receive no more than the amount recovered in arbitration. The legislature set a limit, depending on the option chosen, for non-economic damages recoverable for any one incident per claimant. As to the hospital, claimant chose the option that would limit her only by the jury award but settled for $150,000 total damages against the hospital. This settlement became the substitute for a jury verdict against the hospital. Chester is not entitled to both the arbitration award and that portion of the settlement award representing non-economic damages because that would, contrary to statute, permit her arbitration to result in more than $250,000 in non-economic damages "per incident." Suppose Chester had gone to verdict in the hospital case and received $500,000 in non-economic damages; would she also be entitled to the arbitration award for non-economic losses? Suppose she had received a jury award of only $200,000 in non-economic damages? Although claimant has suffered non-economic damages as a result of Mr. Chester's death, she has suffered them only once and is entitled to only one complete recovery. If she collects her largest award for non-economic damages from any source, she has been fully compensated for her damages and may not collect a second time from another also responsible forthe incident resulting in her loss. So also, if she has collected a portion of her non-economic damages from any source, to that extent she has been compensated and may look to other responsible parties only for the remainder.
There is no dispute that any settlement award for economic damages should not be offset against the Doig award.
AFFIRMED.
PETERSON, J., concurs. GRIFFIN, J., dissents, without opinion.