CAROLYN J. TINDALL AND ROBERT N. TINDALL, HUSBAND AND WIFE, APPELLANTS,
v.
JAMES E. MILLER, M.D., DOUGLAS G. NUELLE, M.D., STANLEY H. AXELROD, M.D., MEDICAL CENTER HOSPITAL AND FLORIDA PATIENTS COMPENSATION FUND, APPELLEES
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In a medical malpractice case, the trial court awarded attorney's fees to the prevailing defendants under Florida Statute §768.56. The appellate court reversed, holding that the statute cannot be retroactively applied to causes of action that accrued before the statute's effective date of July 1, 1980, based on due process considerations.
Section 768.56 is inapplicable and cannot be retroactively applied to causes of action that accrued prior to July 1, 1980. Constitutional due process considerations preclude such retroactive application. Therefore, the attorney's fees award against the Tindalls must be reversed.
[1] A statute providing for attorney's fees to the prevailing party in medical malpractice actions cannot be retroactively applied to causes of action that accrued prior to t…
[2] Due process considerations preclude the retroactive application of a statute awarding attorney's fees in medical malpractice cases.
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Join FLexlaw to unlock all legal intelligence“section 768.56 is inapplicable where the cause of action accrued prior to the effective date of the statute, July 1, 1980”
States the core holding regarding retroactive application of the statute
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Join FLexlaw to unlock all legal intelligenceCarolyn Tindall underwent knee surgery on March 4, 1980, and experienced complications while still hospitalized shortly thereafter. She became aware o…
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RYDER, Chief Judge.
Carolyn and Robert Tindall, unsuccessful plaintiffs in a medical malpractice action, appeal an award of attorney’s fees pursuant to section 768.56, Florida Statutes (1981). We reverse.
Section 768.56 provides for the award of a reasonable attorney’s fee to the prevailing party in medical malpractice actions.1 After a jury verdict in favor of the estate of the defendant/doctor, the trial court ordered the Tindalls to pay $39,704.00 in attorney’s fees. The Tindalls appealed the award, challenging the constitutionality of the statute.
We agree with the holding of the First District in Parrish v. Mullis, 458 So. 2d 401 (Fla. 1st DCA, 1984) that section 768.56 is inapplicable where the cause of action accrued prior to the effective date of the statute, July 1, 1980. As the First District observed, constitutional considerations of due process preclude the retroactive application of section 768.56. Parrish v. Mullis. For that reason we hold, as did the First District, that section 768.56 may not be retroactively applied to a cause of action which accrued prior to its effective date. We recognize that this holding conflicts with Frankowitz v. Propsty, 464 So. 2d 1225 (Fla. 4th DCA 1985).
Although the Tindalls filed their complaint on July 10, 1981, Carolyn Tin-dall’s knee surgery was performed on March 4, 1980, and the ensuing complications therefrom on which she based her complaint occurred shortly thereafter while she was still in the hospital. The record shows that Mrs. Tindall was aware of the alleged malpractice at least by the end of April 1980, therefore, her cause of action accrued prior to July 1, 1980. Salvaggio v. Austin, 336 So. 2d 1282 (Fla. 2d DCA 1976).
Accordingly, we reverse and set aside that portion of the order assessing attorney’s fees against the Tindalls. We affirm the award of costs.
SCHOONOVER and LEHAN, JJ„ concur. . Section 768.56, Florida Statutes (1981), provides:
(1) Except as otherwise provided by law, the 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; however, attorney’s fees shall not be awarded against a party who is insolvent or poverty-stricken. Before initiating such a civil action on behalf of a client, it shall be the duty of the attorney to inform his client, in writing, of the provisions of this section. When there is more than one party on one or both sides of an action, the court shall allocate its award of attorney’s fees among prevailing parties and tax such fees against nonprevailing parties in accordance with the principles of equity. In no event shall a nonprevailing party be required to pay to any or all prevailing parties any amount in attorney’s fees in excess of that which is taxed against such nonprevailing party. A party who makes an offer to allow judgment to be taken against him shall not be taxed for the prevailing party’s attorney’s fees which accrue subsequent to such offer of judgment if the final judgment is not more favorable to the prevailing party than the offer. The court shall reduce the amount of attorney’s fees awarded to a prevailing party in proportion to the degree to which such party is determined by the trier of fact to have contributed to his own loss or injury.
(2) This section shall not apply to any action filed before July 1, 1980.
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Citator
Cited By
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Jerrold Young v. Fern Altenhaus, 472 So. 2d 1152 (Fla. 1985)…ater created by the legislature.... [W]e hold that section 768.56 may not be retroactively applied to a cause of action which accrued prior to its effective date. Id. at 402. The decision of the Second District Court of Appeal in Tindall v. Miller, 463 So. 2d 1262 (Fla. 2d DCA 1985), is consistent with this holding. The Fourth District Court of Appeal has taken a contrary position in Frankowitz v. Propst, 464 So. 2d 1225 (Fla. 4th DCA 1985), and Bethesda Radiology Associates, P.A. v. Yaffee, 437 So. 2d 189 (F…
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Mudano v. ST. Paul Fire & Marine Ins. Co., 543 So. 2d 876 (Fla. 4th DCA 1989)…Further, the statute, in any event, affects substantive rights, and therefore may only be applied prospectively. See Smith v. Department of Insurance, 507 So. 2d 1080 (Fla.1987). Cf. Young v. Altenhaus, 472 So. 2d 1152 (Fla.1985); Tindall v. Miller, 463 So. 2d 1262 (Fla. 2d DCA), rev. denied, 475 So. 2d 695 (Fla.1985); Parrish v. Mullis, 458 So. 2d 401 (Fla. 1st DCA 1984). Therefore, the order is reversed and the cause remanded. DOWNEY, GUNTHER and STONE, JJ., concur.…
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Stanley Frankowitz, D.O. v. Propst, 464 So. 2d 1225 (Fla. 4th DCA 1985)…erein that the attorneys’ fee statute in question can constitutionally be applied to actions based upon tortious conduct that took place before the statute was enacted. See Parrish v. Mullis, 458 So. 2d 401 (Fla. 1st DCA 1984) and Tindall v. Miller, 463 So. 2d 1262 (Fla. 2d DCA 1985).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shaw v. Shaw, 336 So. 2d 1282 (Fla. 3d DCA 1976)
- Stanley Frankowitz, D.O. v. Propst, 464 So. 2d 1225 (Fla. 4th DCA 1985)
- Norene Parrish v. O. Lee Mullis, M.D., 458 So. 2d 401 (Fla. 1st DCA 1984)
- Renelt v. Kline, 458 So. 2d 401 (Fla. 1st DCA 1984)