SHIRLEY F. PERKINS AND VIRGIL PERKINS, APPELLANTS,
v.
ROBERT H. PARE, M.D., AND MARTIN MEMORIAL HOSPITAL ASSOCIATION, INC., A NONPROFIT FLORIDA CORPORATION D/B/A MARTIN MEMORIAL HOSPITAL, APPELLEES
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The Fourth District Court of Appeal granted rehearing in a medical malpractice case to address whether a judicial referee had authority to extend a mediation panel's time limit beyond the 10-month period prescribed by Florida statute. The court determined that while an interlocutory appeal did not lie, common law certiorari was the appropriate remedy to review the order, emphasizing the fundamental right to judicial remedy for alleged wrongs.
While an interlocutory appeal does not lie for review of the extension order, common law certiorari is the appropriate remedy because medical liability mediation panels are unique tribunals that do not fit within traditional appellate review procedures. The order presents a substantial issue directly affecting the panel's jurisdiction that warrants review through common law certiorari.
[1] Interlocutory appeals do not lie from orders extending the time for a mediation hearing.
[2] Common law certiorari is the appropriate method of review for orders issued without or in excess of jurisdiction that may cause material injury for which subsequent appea…
Previewing 2 of 5 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“Medical liability mediation panels are 'strange animals,' the nature of which is such that they are not capable of being characterized as falling within the scope of either Fla.App. Rule 4.2 or Section 120.-68(1), Florida Statutes (Supp.1976)”
Establishes that mediation panels are unique tribunals not fitting traditional appellate review categories
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceShirley and Virgil Perkins filed a medical malpractice claim subject to Florida's mandatory mediation procedure under Section 768.133 (renumbered Sect…
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MAGER, Chief Judge.
Upon due consideration of the petition and after review of the record we are of the opinion that while an interlocutory appeal does not lie the matter should proceed for review by way of common law certiorari. Stuart v. Hertz Corporation, 302 So. 2d 187 (Fla. 4th DCA 1974); Kauffman v. King, 89 So. 2d 24 (Fla.1956); see also Article V, section 2, Florida Constitution (1968).
The order, for which review is sought by interlocutory appeal, is an “Order Extending Time For Mediation Hearing.” The appellant contends that the circuit judge acting as a judicial referee (under Section 768.133(2), Florida Statutes, renumbered Section 768.44(2), Florida Stat. (Supp.1976)) lacked the power to extend the time for a mediation hearing panel to hear and determine a mediation claim beyond the 10-month designated period prescribed in Section 768.133(3), Florida Statutes, renumbered Section 768.44(3), Florida Statutes (Supp. 1976).
The appellant presents a substantial issue for this court to review which directly affects the jurisdiction of the mediation panel over both the subject matter and the parties. If, as the appellant contends, the jurisdiction of the mediation panel terminated ten months after the claim was filed, then the order of the judicial referee “extending time for mediation hearing” is arguably an act “without or in excess of jurisdiction” or an order which “does not conform to the essential requirements of law and which may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, . . Kauffman v. King, supra, at p. 26. See also Steak Enterprises, Inc. v. Claus, 341 So. 2d 203 (Fla. 4th DCA 1976), and State ex rel. Mercy Hospital v. Vann et al., Third District Court of Appeal, 342 So. 2d 1073, opinion filed March 1, 1977.
Medical liability mediation panels are “strange animals,” the nature of which is such that they are not capable of being characterized as falling within the scope of either Fla.App. Rule 4.2 or Section 120.-68(1), Florida Statutes (Supp.1976) (the latter relating to judicial review from intermediate agency actions). A mediation panel is not the type of tribunal that may be said to render “interlocutory orders in civil actions” or be involved in “intermediate agency action” within the contemplation of Fla.App. Rule 4.2 a, or Section 120.68(1), Florida Statutes (Supp.1976), respectively. Under these circumstances, common law certiorari appears to be the most logical and appropriate method (if not the only method of review). 5 Fla.Jur., Certiorari, § 8.
Where the legislature establishes a procedure to provide “reforms” in medical malpractice actions and where during the course of the administration of such procedures an injury or wrong is alleged, then the aggrieved party must be afforded a concomitant right of access to the court for redress of such injury or wrong. Article I, section 21, Declaration of Rights, Florida Constitution (1968). There is no principle of law more fundamental than that which declares for every wrong there is a remedy. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931).
It would be appropriate in light of the particular circumstances of this case and the action herein for this court to offer the following gratuitous reflections. The notion of rendering justice is not simply an empty concept to which “lip service” is given. We must never lose sight in the avalanche of litigation of the fundamental objective of the judicial process, namely, to render justice. If it means that the court must take a proverbial “deep breath and swallow” and undo an act which at the time it was done was seemingly correct in order to reach what is now perceived to be a just determination — then so be it!
Accordingly, rehearing is granted, the order of February 15, 1977 vacated and set aside and the case proceed by way of common law certiorari.
CROSS and DOWNEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perkins v. Robert H. Pare, M.D., 352 So. 2d 65 (Fla. 4th DCA 1977)
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Cole v. Wallace, 354 So. 2d 885 (Fla. 4th DCA 1977)…and Rule 20.190, Fla.R.Med.P. (effective Sept. 1, 1977), provide that the jurisdiction of the medical mediation panel shall terminate automatically upon the expiration of ten months from the date the claim was filed. As we stated in Perkins v. Pare, 352 So. 2d 64 (Fla.4th DCA Opinion filed April 15, 1977): “The language of the . . . statute is explicit. It limits the jurisdiction of the mediation panel to a period of ten months from the date the claim is filed within which a final hearing on the merits must…1 / 2
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Espinosa v. Sparber, 586 So. 2d 1221 (Fla. 3d DCA 1991)…con [*1227] cerned with the availability of a judicial forum for the adjudication of individual rights than to deny access of our courts because of speculation of an increased burden. This subject was again addressed in the case of Perkins v. Pare, 352 So. 2d 64 (Fla. 4th DCA 1977) in which the court expressed this philosophy as follows: ... the aggrieved party must be afforded a concomitant right of access to the court for redress of such injury or wrong. Article I, Section 21, Declaration of Rights, Flor…
Authorities Cited
- Waller v. First Sav. & Tr. Co., 103 Fla. 1025 (Fla. 1931)
- Kauffman v. Annabel King, 89 So. 2d 24 (Fla. 1956)
- Frank M. Stuart, M.D., P.A. v. The HERTZ Corp., 302 So. 2d 187 (Fla. 4th DCA 1974)
- State of Fla. ex rel. Mercy Hosp., Inc. v. The Honorable Harold Vann, 342 So. 2d 1073 (Fla. 3d DCA 1977)
- Perkins v. Robert H. Pare, M.D., 352 So. 2d 65 (Fla. 4th DCA 1977)
- Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977)