Allen v. Hoover

• Decision Date: 08 May 1986
• Docket Number: No. 85-444,85-444
• Parties: 11 Fla. L. Weekly 1072 Susan Carol ALLEN, etc., et al., Appellants, v. Robert T. HOOVER, M.D., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1160

489 So.2d 1160

11 Fla. L. Weekly 1072

Susan Carol ALLEN, etc., et al., Appellants, v. Robert T. HOOVER, M.D., et al., Appellees.

No. 85-444.

District Court of Appeal of Florida Fifth District.

May 8, 1986.

Rehearing Denied June 13, 1986.

Maron E. Lovell, Miami, for appellants.

Ernest H. Eubanks, of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for appellees.

UPCHURCH, Judge.

Appellants, Susan Allen individually and as guardian and next friend of Michael Jacob Allen; Michael Russell Allen, individually and as guardian and next friend of Michael Jacob Allen; and Michael Jacob Allen, a minor by and through his guardians and next friends Susan Carol Allen and Michael Russell Allen, appeal from an order dismissing with prejudice their amended complaint against appellees, Robert D. Hoover, M.D., Harry C. Stone, M.D., George T. Adler, M.D., Hoover, Stone, Corzo and Adler, P.A., and Stone, Corzo and Adler, M.D., P.A., individually and as their professional associations.

This case arose when the Allens became parents of a severely deformed and retarded infant, Michael Jacob Allen. The Allens' initial complaint was dismissed by the trial court, and, in a consolidated appeal, this court affirmed the lower court in part and reversed and remanded in part. Dinatale v. Lieberman, 409 So.2d 512 (Fla. 5th DCA 1982). ¹ Upon remand, the Allens filed an amended complaint which alleged that Susan Allen consulted with appellees regarding her exposure to rubella and the potential threat it posed to her unborn child. The Allens further alleged that a blood test was negligently performed and the doctors advised Susan Allen not to worry about the disease. Finally the complaint alleged that the embryo would have been aborted if the doctors had correctly advised Susan Allen.

Susan Allen submitted her individual claim to a mediation panel as was then required under section 768.44, Florida Statutes (1979). The panel found the doctors were not negligent. The relevant provisions of section 768.44, dealing with mediation panels, state:

(1)(a) Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.

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(4) The filing of the claim shall toll any applicable statutes of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.

The doctors, as individuals and as professional associations, filed a motion to dismiss the complaint on grounds that only damages for actual medical expenses were recoverable, and that the court had no jurisdiction over the professional associations or the husband since they were not included in the mediation proceedings. The court dismissed with prejudice the portions of the amended complaint affecting the professional associations of Hoover, Stone, Corzo, & Adler, P.A., and Stone, Corzo & Adler, M.D., P.A. The court's order also dismissed all the plaintiffs' claims against the individual doctors except those of Susan Allen in her individual capacity.

The first question presented is whether the trial court erred in dismissing the professional associations. The doctors reason that the professional associations were correctly dismissed because they were not named in the claim for mediation and that lack of subject matter jurisdiction is properly included in a motion to dismiss. See Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA), cert. denied, 248 So.2d 172 (Fla.1971); Fla.R.Civ.P. 1.140. They also argue that the claims are barred because the Allens failed to mediate these claims in the two year period allowed under section 768.44. See Armstrong v. Howarth, 409 So.2d 122 (Fla. 5th DCA), rev. denied, 417 So.2d 328 (Fla.1982); Riccobono v. Cordis Corp., 341 So.2d 805 (Fla. 3d DCA 1977).

Section 768.44(1)(a), Florida Statutes (1979), under which the medical panel scheme was authorized, was declared unconstitutional in Aldana v. Holub, 381 So.2d 231 (Fla.1980), but the decision provided only for prospective application. The instant case was instituted prior to the Aldana decision. Section 768.44 required an injured person to submit a claim for mediation for "alleged malpractice by any medical osteopathic physician, podiatrist, hospital or health maintenance organization...." § 768.44(1)(a), Fla.Stat. (1979). The Allens argue that the professional associations were not included in this section and thus mediation was not a prerequisite to filing a malpractice claim against the associations. We agree that it was not necessary to join the professional associations in the mediation claim. The liability of the professional association is vicarious. Section 621.07, Florida Statutes (1985) provides that a professional service corporation is liable for the negligent acts of its officers or employees. A finding of negligence by the...