ANNE MARIE MACMURDO A/K/A ANNE MARIE STAFFORD, APPELLANT,
v.
THE UPJOHN COMPANY, A MICHIGAN CORPORATION, THE UNIVERSITY OF MIAMI, A NONPROFIT ORGANIZATION, AND ARTHUR G. SHAPIRO, M.D., APPELLEES
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The Fourth District Court of Appeal reversed a trial court order dismissing plaintiff's complaint that required compliance with Florida's Medical Mediation Statute before proceeding with litigation. The court held the statute unconstitutional and remanded the case to allow the plaintiff to pursue her claims for breach of warranty and strict liability against a hospital and physician.
The court reversed the dismissal and remanded the case on the authority of Aldana v. Holub, which declared Florida's Medical Mediation Statute unconstitutional. The court declined to adopt a rule insulating physicians and hospitals from liability under strict liability or breach of warranty theories and held that at the pleading stage, the plaintiff should be given an opportunity to state a cause of action without the unconstitutional mediation requirement.
[1] A dismissal order based on a failure to comply with the Florida Medical Mediation Statute is reversible error because the statute has been declared unconstitutional.
[2] A court should not affirm a judgment based on a theory not considered by the trial court when the trial court's decision was based on a procedural impediment that has sin…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We reverse on the authority of Aldana v. Holub, 381 So. 2d 231 (Fla.1980) which declared Florida's Medical Mediation Statute unconstitutional.”
Establishes the primary basis for reversal—the unconstitutionality of the Medical Mediation Statute.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAnne Marie MacMurdo filed a complaint against The Upjohn Company, the University of Miami, and Dr. Arthur G. Shapiro arising from injuries sustained f…
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HERSEY, Judge.
This is an appeal from a final order dismissing plaintiff’s complaint without leave to amend “without first proceeding through Medical Mediation pursuant to F.S. 768.44.”
We reverse on the authority of Aldana v. Holub, 381 So. 2d 231 (Fla.1980) which declared Florida’s Medical Mediation Statute unconstitutional.
It is conceded that the amended complaint did not allege medical malpractice as to The University of Miami and Arthur G. Shapiro, M.D., appellees here, but did attempt to allege a cause of action for breach of warranty and for strict liability.
Relying on case law from other jurisdictions appellees contend that neither the treating physician nor the hospital can be found liable under theories of strict liability or breach of implied warranty for injuries sustained by a patient as a result of use of a drug prescribed by the physician and administered by an employee of the hospital. This being so, argue appellees, no cause of action could be stated and this Court should affirm, applying the familiar principle that the lower court should be affirmed when the judgment is consistent with any theory revealed by the record, regardless of the reasons stated by the trial judge.
Even if we were prepared to adopt the rule insulating the physician and the hospital from liability under the circumstances postulated by appellees, we are not prepared, at this stage of the pleadings, to accept as an inevitable conclusion that appellant will be unable to state a cause of action against appellees on any theory. The order from which this appeal is taken quite clearly demonstrates that the trial court con sidered submission of the claim to medical mediation an essential prerequisite to litigation.
Having made that determination it seems unlikely that other factors were taken into consideration. It is therefore appropriate to remand this cause to the trial court in order to give appellant her day in court unfettered by the unconstitutional impediment which cut short her initial efforts to seek redress for her injuries, at least insofar as these appellees are concerned.
We therefore reverse and remand for further proceedings.
REVERSED AND REMANDED.
MOORE and GLICKSTEIN, JJ., concur.
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The Upjohn Co. v. Anne Marie MacMURDO, 562 So. 2d 680 (Fla. 1990)…d McDONALD, JJ., concur. SHAW, J., dissents with an opinion, in which KOGAN, J., concurs. KOGAN, J., dissents with an opinion. BARKETT, J., recused. . The district court of appeal rendered an earlier opinion in this case. MacMurdo v. Upjohn Co., 388 So. 2d 1103 (Fla. 4th DCA 1980). Because of that opinion’s lack of relevance to the issue before us, it has not been assigned a numerical suffix. . A doctor called by Upjohn testified that the insert was adequate to warn physicians of all adverse bleeding reac…
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The Upjohn Co. v. Anne Marie MacMURDO, 536 So. 2d 337 (Fla. 4th DCA 1988)…affirm the judgment on liability but reverse on the issue of comparative negligence and remand with directions that judgment be entered for Mac-Murdo in the full amount of her damages. GLICKSTEIN and GUNTHER, JJ., concur. . MacMurdo v. Upjohn Co., 388 So. 2d 1103 (Fla. 4th DCA 1980) (reversing order which dismissed complaint without leave to amend); MacMurdo v. Upjohn Co., 444 So. 2d 449 (Fla. 4th DCA 1983) (reversing summary judgment for Upjohn on grounds that adequacy of warning is jury question).…
Authorities Cited
- Aldana v. Holub, 381 So. 2d 231 (Fla. 1980)