Woods v. Holy Cross Hospital

Citation591 F.2d 1164
Decision Date26 March 1979
Docket NumberNo. 75-3523,75-3523
PartiesNellie WOODS, as Personal Representative of the Estate of John N. Woods, Plaintiff-Appellant, v. HOLY CROSS HOSPITAL et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

George A. Kokus, Arthur N. Cohen, Susan Goldman, Miami, Fla., for plaintiff-appellant.

Larry Klein, West Palm Beach, Fla., Edward I. Pollock, Los Angeles, Cal., amicus curiae for Assn. of Trial Lawyers of America.

Barry L. Silber, Asst. Atty. Gen., Tallahassee, Fla., amicus curiae for State of Fla. Rex Conrad, Paul R. Regensdorf, Fort Lauderdale, Fla., for Holy Cross, etc. et al.

James E. Tribble, Mark Hicks, Richard A. Sherman, Miami, Fla., for Dr. Jefferson R. Edwards et al.

Appeal from the United States District Court for the Southern District of Florida.

Before JONES, RONEY, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

In this case we are called upon to examine portions of Florida's Medical Malpractice Law 1 and determine whether its mandate that a medical malpractice claimant participate in a mediation process prior to bringing an action in court must be enforced by a federal district court in a diversity case. For the reasons set forth below, we find that this requirement meets federal constitutional standards and must be applied in such an action.

I

On July 21, 1975, Nellie Woods, a citizen of Ohio and the administratrix of the estate of her late husband, John N. Woods, filed an action in federal district court in which she claimed damages pursuant to Florida's Wrongful Death Act 2 for Mr. Woods's death. The alleged cause of death was medical malpractice committed by two physicians and a hospital, all named as defendants. Their malpractice insurers were later added as parties-defendant. Jurisdiction was based upon diversity of citizenship, 28 U.S.C. § 1332 (1976). The defendants separately moved to dismiss Mrs. Woods's complaint, alleging that her failure to abide by the mediation panel requirement of Florida Statutes section 768.44 precluded her action. 3 The district court granted the motions to dismiss on the ground that Mrs. Woods had failed to perform a condition precedent to her suit by not proceeding before a Florida malpractice mediation panel. This appeal was taken by Mrs. Woods from the final judgment dismissing her complaint.

Mrs. Woods has raised various issues in this appeal. Her major arguments are as follows: (1) the Florida Medical Malpractice Law is procedural rather than substantive and under the rules of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny is inapplicable in a diversity case; and (2) the Florida Medical Malpractice Law violates federal equal protection, due process, and right to jury trial standards. We dismiss her other arguments as nonmeritorious. We will discuss Mrs. Woods's major arguments seriatim after we set forth the relevant Florida statutory scheme.

II

In 1975 the Florida Legislature found as follows:

WHEREAS, the cost of purchasing medical professional liability insurance for doctors and other health care providers has skyrocketed in the past few months; and

WHEREAS, it is not uncommon to find physicians in high-risk categories paying premiums in excess of $20,000 annually; and

WHEREAS, the consumer ultimately must bear the financial burdens created by the high cost of insurance; and

WHEREAS, without some legislative relief, doctors will be forced to curtail their practices, retire, or practice defensive medicine at increased cost to the citizens of Florida; and

WHEREAS, the problem has reached crisis proportion in Florida . . ..

Preamble to 1975 Fla.Laws ch. 75-9. Accordingly, it adopted the Medical Malpractice Reform Act of 1975. 1975 Fla.Laws ch. 75-9, § 1. The predecessor to sections 768.44 and .47 was contained in that provision. Id. § 5.

Florida Statutes section 768.44 creates a system under which prior to bringing an action against a medical or osteopathic physician, podiatrist, hospital or health maintenance organization in any court of the state a medical malpractice claimant must submit his claim to a medical liability mediation panel by filing the claim on special forms with the clerk of a state circuit court. 4 If he fails so to file he is precluded from bringing any action based on medical malpractice in "any court of (the state of Florida)." See, e. g., Riccobono v. Cordis Corp., 341 So.2d 805 (Fla.Dist.Ct.App.1977).

After a claim is properly filed all defendants must answer within twenty days or else a claimant may proceed in court. If answers are timely filed a claim is heard by a mediation panel consisting of a state circuit judge, 5 an attorney, and a licensed physician. The circuit judge is chosen in a "blind" system; the attorney and physician are chosen from lists compiled by the chief judge of each judicial circuit in Florida. The attorney and physician panel members are each paid one hundred dollars for each day they spend on the panel; both parties to a claim are assessed equally for the payment of these fees. A hearing must be held within ten months of the filing of a claim with the circuit court clerk or else the mediation panel's jurisdiction terminates and a normal lawsuit may be filed; any applicable statute of limitations is tolled from the filing of a claim until at least sixty days after a mediation panel either mails its decision to the parties or has its jurisdiction otherwise terminated. Discovery rules of the Florida Rules of Civil Procedure are applied at panel hearings, and procedural and evidentiary rules are less formal than in ordinary civil litigation. Parties may subpoena and cross-examine witnesses at hearings; counsel for the parties may make opening and closing statements. The judge presiding over a hearing is precluded from presiding over any subsequent judicial proceedings arising out of the claim at issue, and other panel members may act as neither counsel nor witnesses at any subsequent trial of the claim.

Within thirty days of the completion of any hearing a panel files a written decision in which, using specified language, it finds the defendant was or was not negligent and accordingly is or is not liable to the plaintiff. A panel member may concur or dissent to the decision in writing. If liability is found and the parties so agree the panel may proceed to help the parties reach a settlement. In this regard, the panel may recommend a reasonable range of damages Section 768.47 provides that if any party rejects the decision of a mediation panel he may institute litigation based on his claim in an appropriate court. The panel findings are admissible into evidence in any subsequent litigation, but specific findings of fact are inadmissible. Parties may comment upon panel findings in opening statement or closing argument just as on any other evidence introduced at trial. If there was a dissenting opinion to the panel's decision the numerical vote of the panel is also admissible into evidence. If a defendant fails to participate in the mediation panel process the plaintiff may disclose this fact in any subsequent civil action. Carter v. Sparkman, 335 So.2d 802, 805 (Fla.1976), Cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). Panel members may not be called to testify as witnesses concerning the merits of a case. The jury is instructed that a panel's finding is not binding upon it but should be accorded such weight as the jury chooses to ascribe to it.

but may not recommend punitive damages. Any damage recommendation is not admissible into evidence at any subsequent trial.

Sections 768.44 and .47 are important parts of Florida's Medical Malpractice Law. They successfully weathered both state and federal constitutional challenges in Carter v. Sparkman. We now turn to Mrs. Woods's various attacks on these provisions in the case before us.

III

Mrs. Woods's most troublesome argument is that sections 768.44 and .47 are procedural rather than substantive and thus should be inapplicable in a district court diversity case. As a general rule, in a federal diversity case the district court applies the substantive law of the forum state. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Owl & Turtle, Inc. v. Travelers Indemnity Co., 554 F.2d 196 (5th Cir. 1977). The test for the application of state as opposed to federal law has been expressed in various ways, whether in a "substance-procedure" test, Erie Railroad v. Tompkins, an "outcome determinative" test, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), or by reference to the "discouragement of forum-shopping and avoidance of inequitable administration of the laws," Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). See generally C. Wright, Law of Federal Courts §§ 54-59 (3d ed. 1976). Under any of the relevant tests we are convinced that Florida Statutes sections 768.44 and .47 must be applied in federal court. Our opinion on this matter is heightened by the fact that we are guided by "the policies underlying the Erie rule." See Hanna v. Plumer, 380 U.S. at 467-68, 85 S.Ct. at 1141-42; Guaranty Trust Co. v. York, 326 U.S. at 108-12, 65 S.Ct. at 1469-71.

Section 768.44 provides that a plaintiff whose claim is based on an injury or death allegedly caused by medical malpractice must submit his claim to a medical liability mediation panel before he files an action in court; section 768.47 requires the admission into evidence of the panel's findings at any subsequent trial of such a claim. If federal courts sitting in diversity cases refuse to apply sections 768.44 and .47, Florida's medical malpractice statutory scheme will be inequitably administered. Non-resident plaintiffs will have a substantial advantage over resident ones, as non-resident suitors may avoid the mediation panel provision simply by bringing their actions in federal court; consequently,...

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