DENISE GROSSMAN, PETITIONER,
v.
HONORABLE GORDON A. DUNCAN, JR., AS JUDGE OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA, AND JUDICIAL REFEREE, CHALERMCHAI PUNYA, M. D., PANEL MEMBER FOR MEDIATION, AND EARL M. JOHNSON, ESQUIRE, PANEL MEMBER FOR MEDIATION, RESPONDENTS; DENISE GROSSMAN, APPELLANT, V. MEMORIAL HOSPITAL OF JACKSONVILLE AND MICHAEL R. MALANGA, M. D., APPELLEES
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Denise Grossman sought a writ of prohibition to prevent a judicial referee from conducting a medical malpractice mediation hearing beyond the six-month statutory deadline. The court held that the hearing was not properly commenced before a three-member panel as required by statute and rules, and that the panel lost jurisdiction when the hearing did not begin within the six-month period.
The court held that the hearing was not properly commenced as required by statute and rule because it was not conducted before a three-member panel, and that the hearing on the claim was not commenced within the six-month period as mandated by § 768.44(3). Therefore, the panel lost jurisdiction and the writ of prohibition was granted.
[1] Medical mediation statutes and rules, being in derogation of the common law, must be strictly construed.
[2] A medical mediation hearing must be commenced before a three-member panel, including a judicial referee, a physician, and an attorney.
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Join FLexlaw to unlock all legal intelligence“Each hearing . . . shall be before a three-member panel, hereinafter referred to as the 'panel', 'mediation panel,' or 'hearing panel' . . .”
Establishes the statutory requirement that mediation hearings must be conducted before a three-member panel, not a judicial referee alone.
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Join FLexlaw to unlock all legal intelligenceGrossman filed her medical malpractice claim on April 7, 1978. The judicial referee extended the hearing date to October 7, 1978 (the deadline for the…
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ERVIN, Judge.
The petitioner seeks a writ prohibiting the judicial referee of the medical mediation panel from commencing a hearing on her malpractice claim beyond the six-month statutory period in § 768.44(3) and Fla.R. Med.P. 20.190(c).
The record shows that the petitioner filed her claim on April 7, 1978, and that, before the initial 120-day 1 statutory time period had run, the judicial referee had extended the time for commencement of the hearing to October 7, 1978, the last date on which the hearing could be commenced before the panel lost jurisdiction. See Fla.R.Med.P. 20.190.
On October 3, 1978, the judicial referee entered an order stating (1) the attorney and physician members of the panel and (2) that the mediation hearing would convene on October 5, 1978. The judicial referee did not notify the other panel members of their selection or that the hearing was to begin on October 5. The October 5 “hearing” was conducted before the judicial referee alone and, when respondents sought to introduce certain documents into the record, petitioner objected that the proceeding was not the mediation hearing contemplated by § 768.44 or the Medical Mediation Rules. The judicial referee overruled the objection, allowed the documents into evidence and scheduled the hearing to continue on January 22, 1979. Later, the judicial referee denied petitioner’s motion that he request the clerk to enter a notice of termination of the proceedings, and petitioner’s complaint on her claim, filed in Circuit Court, was dismissed without prejudice for failure to mediate.
We agree with the petitioner that the hearing was not commenced as required in § 768.44(3) and Fla.R.Med.P. 20.190(c). Section 768.44(2), Fla.Stat. (1977), states that “[ejach hearing . . . shall be before a three-member panel, hereinafter referred to as the ‘panel’, ‘mediation panel,’ or ‘hearing panel’ . . ..” (e. s.). Rule 20.030, Fla. R.Med.P., defines “panel” as “the judicial referee, licensed physician and attorney chosen ... to hear the claim.” We also agree that the “hearing on the claim before the hearing panel” was not commenced within six months of the date the complaint was filed, as required by § 768.-44(3).
The statutes and rules governing medical mediation proceedings must be strictly construed because they are in derogation of the common law and present “an impediment to the constitutional guarantee of access to the courts . . ..” Ballard v. Curatolo, 363 So. 2d 864, 865 (Fla. 4th DCA 1978); see also Carter v. Sparkman, 335 So. 2d 802 (Fla.1976); Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978); Aldana v. Holub, 354 So. 2d 1272 (Fla. 1st DCA 1978); Cole v. Wallace, 354 So. 2d 885 (Fla. 4th DCA 1977).
The judicial referee’s reply to our order to show cause states that substantial compliance with the statutory procedures secured the panel’s continuing jurisdiction, citing Thames v. Melvin, 365 So. 2d 813 (Fla. 1st DCA 1979).
The Thames opinion was limited strictly to its facts. In that case we held that a written order of the judicial referee, after a pre-trial conference held within the 120-day period, setting the final hearing for a day outside the initial 120-day period, was an extension order under Fla.R. Med.P. 20.160(e), so that the panel did not lose jurisdiction. In Thames, however, neither the statute nor Fla.R.Med.P. 20.160(e) mandated a different result.2 Here, § 768.-44(3) expressly required the hearing be commenced before the panel within six months of the date petitioner filed her claim.
Therefore, it is ordered that the writ of prohibition be issued.3
MILLS, Acting C. J., concurs.
BOOTH, J., dissents without opinion.
. Section 768.44(3) provides that “hearing on the claim before the hearing panel shall be held within 120 days of the date the claim was filed unless such time is extended. Such extension shall not exceed 6 months from the date the claim was filed.”
. Section (e) of that rule simply states that “the judicial referee, by written order, may extend the time for commencing the hearing.”
. The effect of our opinion is consistent with that of the Fourth District Court of Appeal in the recently decided case of Diggett v. Conkling, 368 So. 2d 74 (1979).
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Aldana v. Holub, 381 So. 2d 231 (Fla. 1980)…l notice of cases construing a statute under review. State ex rel. Landis v. Prevatt, 110 Fla. 29, 148 So. 578 (1933). . Cohen v. Johnson, 373 So. 2d 389 (Fla. 4th DCA 1979); Thames v. Melvin, 370 So. 2d 439 (Fla. 1st DCA 1979); Grossman v. Duncan, 371 So. 2d 142 (Fla. 1st DCA 1979); Diggett v. Conkling, 368 So. 2d 74 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So. 2d 1172 (Fla. 4th DCA 1979) (on rehearing); Ballard v. Curatolo, 363 [*237] So. 2d 864 (Fla. 4th DCA 1978); Cole v. Burrows, 364 So. 2d 502 (Fla…
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Leon L. Shore, D.O. v. Abbazia, 375 So. 2d 354 (Fla. 3d DCA 1979)…statutorily mandated period for the commencement of a final hearing on the merits and that the panel therefore lost jurisdiction over the proceeding when the six month period expired without a true hearing having begun. See also Grossman v. Duncan, 371 So. 2d 142 (Fla. 1st DCA 1979). Although it appears that, in this case, the parties stipulated to this process, it is established that no such agreement may serve effectively to extend the authority of the panel to proceed. Cohen v. Johnson, 373 So. 2d 389 (F…
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Agustin F. Granda, M.D. v. The Honorable Arden M. Siegendorf, 370 So. 2d 1227 (Fla. 3d DCA 1979)…he petition for writ of mandamus is granted, the motion to dismiss is denied, and the respondent judicial referee is directed to hold a full medical mediation hearing with all three panel members present based on the authority of Grossman v. Duncan, 371 So. 2d 142 (Fla. 1st DCA 1979); Hewitt v. Caffee, 368 So. 2d 1342 (Fla. 3d DCA 1979); Diggett v. Conkling, 368 So. 2d 74 (Fla. 4th DCA 1979). We are confident that it will be unnecessary for this court to issue a peremptory writ of mandamus and that the respon…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. Sparkman, 335 So. 2d 802 (Fla. 1976)
- Green v. Broward Gen. Med. Ctr. & Dr. C. L. Reid, 356 So. 2d 877 (Fla. 4th DCA 1978)
- Cole v. Wallace, 354 So. 2d 885 (Fla. 4th DCA 1977)
- Luis Aldana, M.D. v. Holub, 354 So. 2d 1272 (Fla. 1st DCA 1978)
- Boston Invs., Inc. v. Horowitz, 368 So. 2d 74 (Fla. 3d DCA 1979)
- Diggett v. Honorable Virgil B. Conkling, 368 So. 2d 74 (Fla. 4th DCA 1979)
- Ballard v. Louie C. Curatolo, 363 So. 2d 864 (Fla. 4th DCA 1978)
- City OF Pensacola v. Bd. OF Review, 365 So. 2d 813 (Fla. 1st DCA 1979)
- Thames v. Melvin, 365 So. 2d 813 (Fla. 1st DCA 1979)