Abdelaziz v. A.M.I.S.U.B. of Florida, Inc.

• Citation: 12 Fla. L. Weekly 2407,515 So.2d 269
• Decision Date: 13 October 1987
• Docket Number: Nos. 86-1128,86-1984 and 86-2448,86-1512,s. 86-1128
• Parties: 12 Fla. L. Weekly 2407 Fatimeh T. ABDELAZIZ, a/k/a Tina Aziz, individually and as survivor of Baby Boy Abdelaziz, deceased, and Illian Abdelaziz, her husband and as survivor of Baby Boy Abdelaziz, Appellants, v. A.M.I.S.U.B. OF FLORIDA, INC., d/b/a Southeastern Medical Center, Dr. Alan Altman and Barry Feingold, P.A., Appellees.
• Court: Court of Appeal of Florida (US)

Page 269

515 So.2d 269

12 Fla. L. Weekly 2407

Fatimeh T. ABDELAZIZ, a/k/a Tina Aziz, individually and as survivor of Baby Boy Abdelaziz, deceased, and Illian Abdelaziz, her husband and as survivor of Baby Boy Abdelaziz, Appellants, v. A.M.I.S.U.B. OF FLORIDA, INC., d/b/a Southeastern Medical Center, Dr. Alan Altman and Barry Feingold, P.A., Appellees.

Nos. 86-1128, 86-1512, 86-1984 and 86-2448.

District Court of Appeal of Florida Third District.

Oct. 13, 1987.

Rehearing Denied Nov. 25, 1987.

Weaver, Weaver, Lardin & Liroff and Thomas D. Lardin (Ft. Lauderdale), for appellants.

Gaebe and Murphy; James C. Blecke and Susan S. Lerner; Womack, Lombana & Bass, for appellees.

Before HUBBART and FERGUSON and JORGENSON, JJ.

HUBBART, Judge.

This is an appeal by the plaintiffs from adverse final summary judgments entered below in a medical malpractice action involving claims for (1) wrongful death, (2) medical malpractice, and (3) punitive damages, arising from the stillbirth of the female plaintiff's viable fetus; the plaintiffs also appeal from certain attorney's fee orders entered thereafter in favor of the defendant health care providers. For the reasons which follow, we affirm in part and reverse in part.

I

The relevant facts of this case are as follows. In October 1983, the plaintiff Fatimeh T. Abdelaziz and her husband Illian Abdelaziz filed a complaint, which was subsequently amended, against the defendant health care providers A.M.I.S.U.B. of Florida, Inc. d/b/a Southeastern Medical Center [hereinafter "hospital"], Dr. Alan Altman, and Barry Feingold, P.A., as well as other defendants who are not parties to this appeal. The action was filed in the Circuit Court of the Eleventh Judicial Circuit of Florida where all proceedings relevant to this cause took place.

The first amended complaint attempted in part to plead a cause of action against each defendant for the wrongful death of Mrs. Abdelaziz' stillborn fetus allegedly caused by the defendants' malpractice. Specifically, it was alleged that on February 4, 1982, Mrs. Abdelaziz, who was eight months pregnant and in labor, was involved in an automobile accident while on her way to the hospital to deliver her baby; that she was taken to the emergency room of the defendant hospital and treated by the defendant Dr. Altman; and that because of Dr. Altman's negligent treatment, Mrs. Abdelaziz' viable eight-month-old fetus died in utero and was stillborn. Upon proper motions, the trial court dismissed the wrongful death counts of the complaint for failure to state a cause of action.

The plaintiffs were then permitted to file a second amended complaint in which they attempted to plead causes of action against each defendant, based on the same essential facts pled in the prior amended complaint, for Mrs. Abdelaziz' alleged physical and mental injuries and associated damages. Specifically, it was alleged that Mrs. Abdelaziz suffered physical injuries and emotional distress because of the stillbirth of her once viable eight-month-old fetus allegedly caused by defendant Dr. Altman's medical malpractice. Upon proper motions, the trial court struck all claims for mental pain and suffering allegedly caused by the loss of the fetus based upon the alleged malpractice. It was later conceded by the plaintiffs that Mrs. Abdelaziz sustained no physical injuries to herself from the alleged malpractice, and that their sole claim was for mental pain and suffering occasioned by the loss of the fetus.

Finally, the plaintiffs sought leave to file a third amended complaint in which the same essential facts were pled as in the previous two complaints, only this time the plaintiffs made a claim for punitive damages. This new claim was based on the defendants' alleged reckless decision to retain Mrs. Abdelaziz without proper treatment until a transfer to Jackson Memorial Hospital could be arranged because she and her husband had no insurance or financial ability to pay for treatment at the defendant hospital. Mrs. Abdelaziz' unborn viable fetus allegedly died during this ensuing delay and was later stillborn at Jackson Memorial Hospital. As in the prior amended complaint, the plaintiffs' sole claim here was for mental pain and suffering occasioned by the loss of the fetus. The trial court denied the plaintiffs' request to file this amended complaint on the ground that it failed to state a cause of action.

The trial court thereafter entered final summary judgment in favor of the defendants and assessed attorney's fees against the plaintiffs and in favor of the defendants hospital and Feingold, P.A., pursuant to Section 768.56, Florida Statutes (1983). The plaintiffs appeal.

II

The plaintiffs raise four central points on appeal. First, the plaintiffs urge that they have a valid wrongful death claim for the death of the eight-month-old fetus as pled in the first amended complaint, and that, accordingly, the trial court erred in dismissing the relevant wrongful death counts of that complaint and entering adverse summary judgments thereon. Second, the plaintiffs urge that they have a valid claim for what is, in essence, negligent...