JAMES R. LINDSEY, D.P.M., APPELLANT,
v.
BERNICE AUSTIN ET AL., APPELLEES
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Dr. Lindsey appealed the dismissal of his third-party complaint against Dr. Blaine in a medical malpractice case arising from complications following toe surgery. The court reversed the dismissal, holding that Lindsey's complaint stated a valid cause of action for contribution under Florida's Uniform Contribution Among Tortfeasors Act, even though it was styled as an indemnity claim.
The court held that although styled as an indemnity claim, the third-party complaint stated a valid cause of action for contribution under Section 768.31, Florida Statutes, because it alleged that Lindsey's liability would be limited to the initial surgery while Blaine would be liable for other damages. The complaint must be allowed to stand and the trier of fact must determine the extent of liability between the two doctors.
[1] A third-party complaint alleging that a defendant's liability, if any, is limited to initial actions, and that a third-party defendant is liable for subsequent damages ca…
[2] A party claiming to be secondarily liable and seeking to shift liability to an "active tort feasor" for damages caused by another's negligence may state a claim for contr…
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Join FLexlaw to unlock all legal intelligence“whatever responsibility for damages, if any, may be ultimately determined by a jury, would be limited to the initial surgery and that Third Party Defendant is liable for any damages for osteomyelitis, impending gangrene and loss of BERNICE AUSTIN'S toe caused by Doctor GEORGE BLAINE'S negligence; that the Third Party Plaintiff is only secondarily liable for these aggravated damages and is but a passive tort feasor and as such is entitled to indemnification from the active tort feasor, GEORGE BLAINE, M.D.”
Establishes that the third-party complaint, though styled as indemnity, actually alleged a proportional allocation of liability between the two defendants
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Join FLexlaw to unlock all legal intelligencePlaintiff Bernice Austin sued Dr. Lindsey for medical malpractice stemming from his surgical removal of a corn from her left foot. Following Lindsey's…
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NATHAN, Judge.
This is an appeal by the defendant, Dr. James Lindsey, from an order dismissing with prejudice his third party complaint against third party defendant, Dr. George Blaine, in a medical malpractice action.
Plaintiff, Bernice Austin, filed a complaint alleging medical malpractice by Dr. James Lindsey, stemming from the surgical removal by Dr. Lindsey of a corn on the little toe of plaintiff Austin’s left foot, and the subsequent infection, osteomyelitis and impending gangrene resulting in amputation of the toe. Dr. Lindsey filed a third party complaint against Dr. George Blaine, who treated plaintiff Austin after surgery by Dr. Lindsey, alleging that it was Dr. Blaine’s negligence in administering treatment which resulted in the disease requiring amputation of the toe. Lindsey referred to himself as a “passive tort feasor,” and sought indemnification from the “active tort feasor,” Blaine. On motion of Dr. Blaine, the trial court dismissed the third party complaint with prejudice. We reverse.
Although the amended third party complaint sounds in indemnity, it states that,
“. . . whatever responsibility for damages, if any, may be ultimately determined by a jury, would be limited to the initial surgery and that Third Party Defendant is liable for any damages for osteomyelitis, impending gangrene and loss of BERNICE AUSTIN’S toe caused by Doctor GEORGE BLAINE’S negligence; that the Third Party Plaintiff is only secondarily liable for these aggravated damages and is but a passive tort feasor and as such is entitled to indemnification from the active tort feasor, GEORGE BLAINE, M.D.” (emphasis added)
While the third party complaint specifically seeks indemnification, it alleges, in effect; that defendant Lindsey’s liability, if any, would be limited to the initial surgery, and that the third party defendant Blaine, would be liable for any other damages to the plaintiff. This, then, states a cause of action for contribution, as authorized by Section 768.31, Florida Statutes (1975), the Uniform Contribution Among Tortfeasors Act. See Leesburg Hospital Association, Inc. v. Carter, 321 So. 2d 433 (Fla 2d DCA 1975), and Central Truck Lines, Inc. v. White Motor Corporation, 316 So. 2d 579 (Fla 3d DCA 1975). Therefore, the third party complaint must be allowed to stand and it is up to the trier of fact to determine the extent of liability, if any, as between the two doctors.
Reversed.
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Citator
Cited By
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Nadio & Livio Christiani & Reserve Ins. Co. v. Popovich, 363 So. 2d 2 (Fla. 1st DCA 1978)…tates employing the Uniform Act, and in contrast to California, Florida appellate courts have held third party claims for contribution allowable prior to entry of a plaintiffs judgment and have reversed dismissals of those claims. Lindsey v. Austin, 336 So. 2d 486 (Fla. 3d DCA 1976); First Church of Christ Scientist v. City of St. Petersburg, 344 So. 2d 1302 (Fla. 2d DCA 1977); Florida Power Corp. v. Taylor, 332 So. 2d 687 (Fla. 2d DCA 1976); Leesburg Hospital Ass’n, Inc. v. Carter, 321 So. 2d 433 (Fla. 2d DC…
Authorities Cited
- Cent. Truck Lines, Inc. v. White Motor Corp., 316 So. 2d 579 (Fla. 3d DCA 1975)
- Leesburg Hosp. Ass'n, Inc. v. Edward W. Carter, M.D., 321 So. 2d 433 (Fla. 2d DCA 1975)