MOHAMMAD H. ASHRAF, M.D., APPELLANT,
v.
ESPERANZA SMITH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ZOILA CRUZ, APPELLEE
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The court held that the trial court erred by not allowing the jury to consider the hospital's potential negligence, requiring a new trial on liability and apportionment of fault.
[1] A judgment against a defendant's insurer is derivative of the defendant's liability and must be vacated if the judgment against the defendant is reversed.
[2] A trial court must include a hospital on the verdict form in a medical malpractice action if a subsequent Supreme Court decision requires such inclusion, even if prior co…
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Join FLexlaw to unlock all legal intelligencePlaintiff sued Dr. Ashraf for wrongful death due to medical malpractice. The trial court excluded the hospital from the verdict form. The Supreme Cour…
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PER CURIAM.
Mohammad H. Ashraf, M.D., appeals an adverse final judgment entered in favor of plaintiff, Esperanza Smith, following a jury trial in Smith’s medical malpractice wrongful death action. The trial court correctly denied Ashraf s request to include the hospital on the verdict form on the basis of this court’s then controlling decision in Fabre v. Marin, 597 So. 2d 883 (Fla. 3d DCA 1992); however, the Supreme Court’s subsequent decision in Fabre v. Marin, 623 So. 2d 1182 (Fla.1993) requires reversal of the judgment and remand for a new trial on the issue of liability.
Appellant’s remaining points lack merit.
Reversed and remanded.
ON MOTION TO AMEND NOTICE OF APPEAL and MOTION FOR CLARIFICATION
PER CURIAM.
I
We deny the defendant Dr. Mohammad H. Ashraf s motion to amend his notice of appeal to include his insurer, The Physicians Protective Trust Fund, as we lack the jurisdiction to permit such an amendment; in any event, the proposed amendment is entirely unnecessary. Our reversal of the judgment appealed from by Dr. Ashraf necessarily means that the trial court must, upon remand, vacate the judgment against The Physicians Protective Trust Fund upon proper motion. The insurer was not a party to the original action below and was only added to the judgment by virtue of the plaintiffs post-judgment motion pursuant to Section 627.7262, Florida Statutes (1991) (currently Section 627.4136) as Dr. Ashraf s insurer. The Physicians Protective Trust Fund’s liability under the final judgment is entirely derivative of Dr. Ash-rafs liability; our reversal of the judgment against Dr. Ashraf necessarily means that the judgment against his insurer must also be set aside.
II
We grant the plaintiff Esperanza Smith’s motion for clarification. Our opinion is clarified as follows: the judgment against Dr. Ashraf is reversed, which necessarily means that the judgment against Dr. Ashraf s insurer, The Physicians Protective Trust Fund, must be vacated by the trial court upon proper motion after remand. The cause is remanded to the trial court with directions to conduct a new trial in which the jury should be instructed (1) that both Dr. Ashraf and Dr. Subramanian were negligent causes of the plaintiff decedent’s death [in accord with the jury verdict returned below which we do not disturb by our reversal]; (2) that the jury should determine whether the hospital was also a negligent cause of the plaintiff decedent’s death [the hospital was erroneously excluded from the jury verdict in this cause, Fabre v. Marin, 623 So. 2d 1182 (Fla.1993) ]; and (3) that if, but only if, the jury finds against the hospital on that issue, it should then apportion the percentage of fault between Dr. Ashraf, Dr. Subramanian, and the hospital. If, however, at the retrial the jury should determine that the hospital was not a negligent cause of the plaintiff decedent’s death, it will not be necessary for the jury to apportion fault at all, and the original judgment against Dr. Ashraf and The Physicians Protective Trust Fund should be reinstated. To the extent that the plaintiff seeks a rehearing in this cause; such motion is denied.
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Schindler Elevator Corp. v. Digna Viera, 693 So. 2d 1106 (Fla. 3d DCA 1997)…e case was remanded for a retrial on liability but not damages. Thereafter other panels of this court accepted the theory which the plaintiff had unsuccessfully espoused in Viera I. See Shufflebarger v. Galloway, 668 So. 2d at 997; Ashraf v. Smith, 647 So. 2d 892 (Fla. 3d DCA 1994), review denied, 658 So. 2d 989 (Fla. 1995). In Ashraf, the final judgment likewise had to be reversed because of the Florida Supreme Court’s intervening decision in Fabre. In Ashraf the panel issued the following instructions for…
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Harry L. Shufflebarger, M.D. & Harry L. Shufflebarger, P.A. v. Galloway, 668 So. 2d 996 (Fla. 3d DCA 1995)…hufflebarger’s motion for a new trial on the amount of economic damages awarded and his fault for the medical malpractice. Shufflebarger v. Galloway, 668 So. 2d 996 (Fla. 3d DCA 1995). See Fabre v. Marin, 623 So. 2d 1182 (Fla.1993); Ashraf v. Smith, 647 So. 2d 892 (Fla. 3d DCA 1994), rev. denied, 658 So. 2d 989 (Fla.1995). After the panel opinion was released, Dr. Shufflebarger moved for rehearing and rehearing en banc and raised the issue of intra-district conflict. We found merit to the motion and asked fo…1 / 2
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Authorities Cited
- Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)
- Alcides Castro v. State, 597 So. 2d 883 (Fla. 3d DCA 1992)