Opinion
No. 87-0918.
April 20, 1988. On Motion for Rehearing June 15, 1988.
Appeal from the Circuit Court, Broward County, Louis Weissing, J.
Rex Conrad and Susan L. Dolin of Conrad, Scherer James, Fort Lauderdale, for appellant.
Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Larry Klein of Klein Beranek, P.A., West Palm Beach, for appellee.
The appellant association, a group of physicians, appeals a trial court order denying its motion for attorney's fees made after the association was exonerated by a jury of allegations of negligence and injury made by the appellee. We reverse.
The trial court denied the fees because associations or other groups of health care providers are not specifically designated in the medical malpractice attorney's fee statute, section 768.56, Florida Statutes (1983), which provides in part:
[T]he court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization.
We cannot agree with the trial court's interpretation of the statute. It is clear that the complaint by appellee was for medical malpractice by the group of physicians comprising the association. By seeking to hold these physicians liable, albeit as a collective group, we believe the appellee was subject to the provisions of section 768.56 in the event she failed to prevail.
We reverse and remand for the purpose of awarding appellant attorney's fees.
ANSTEAD and STONE, JJ., concur.
DELL, J., dissents with opinion.
ON MOTION FOR REHEARING
We grant appellee's motion for rehearing, in part, by certifying the following questions to the supreme court:
WHETHER REASONABLE ATTORNEY FEES MAY BE RECOVERED UNDER SECTION 768.56, FLORIDA STATUTES, WHERE A PROFESSIONAL ASSOCIATION IS THE PREVAILING PARTY. IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, THEN DOES SECTION 768.56 AUTHORIZE THE AWARD OF ATTORNEY FEES WHERE THE ALLEGED NEGLIGENCE IS BY AN EMPLOYEE OTHER THAN A HEALTH CARE PROVIDER ENUMERATED IN THE STATUTE.
In all other respects, the motion for rehearing is denied.
ANSTEAD, DELL and STONE, JJ., concur.
Appellee filed suit and claimed damages for personal injuries allegedly sustained when she fell out of bed after receiving electric shock therapy. A nurse employed by appellant administered anesthesia prior to the shock treatment.
In Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986), the Supreme Court held that section 768.56, Florida Statutes (1983) should be strictly construed and held:
Nurse Poore is not a medical or osteopathic physician, a podiatrist, a hospital or a health maintenance organization. Therefore, the trial court erred in assessing attorney's fees against Nurse Poore because she is not a member of any of the classes of persons enumerated in section 768.56.
I believe the trial court properly concluded that the appellant association was not a member of the class of persons specifically enumerated in section 768.56. Therefore I would affirm the trial court's denial of attorney's fees on the authority of Finkelstein v. North Broward Hospital District.