Florida Medical Center, Inc. v. Von Stetina By and Through Von Stetina

• Decision Date: 10 August 1983
• Docket Number: 82-2070 and 82-2078,82-1993,82-1686,82-1992,82-1341,82-1597,Nos. 82-1332,s. 82-1332
• Citation: 436 So.2d 1022
• Parties: FLORIDA MEDICAL CENTER, INC., d/b/a Florida Medical Center and Florida Patient's Compensation Fund, Appellants, v. Susan Ann VON STETINA, By and Through her parents, legal guardians and next friends, Mary VON STETINA and Leo Von Stetina, Appellee.
• Court: Florida District Court of Appeals

Page 1022

436 So.2d 1022

FLORIDA MEDICAL CENTER, INC., d/b/a Florida Medical Center and Florida Patient's Compensation Fund, Appellants, v. Susan Ann VON STETINA, By and Through her parents, legal

guardians and next friends, Mary VON STETINA and

Leo Von Stetina, Appellee.

Nos. 82-1332, 82-1341, 82-1597, 82-1686, 82-1992, 82-1993,

82-2070 and 82-2078.

District Court of Appeal of Florida,

Fourth District.

Aug. 10, 1983.

Motions to Stay Mandate Granted

Aug. 24, 1983.

Rehearing Denied Aug. 30, 1983.

David M. Orshefsky, G. Michael Keenan and William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Bernard & O'Brien, Fort Lauderdale, and Steven R. Berger of Steven R. Berger, P.A., Miami, for appellant Florida Medical Center.

Talbot D'Alemberte and Jeffrey B. Crockett of Steel Hector & Davis; Samuel J. Dubbin, Miami, Charles W. Ehrhardt, Richard B. Collins of Perkins & Collins, Tallahassee, for appellant Florida Patient's Compensation Fund.

Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellee.

Bruce Culpepper of Culpepper, Beatty & Turner, P.A., Tallahassee, and Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, amicus curiae, for Florida Medical Malpractice Joint Underwriting Ass'n.

John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, P.A., Tallahassee, amicus curiae, for Florida Hosp. Ass'n.

James E. Tribble and Diane H. Tutt of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, amicus curiae, for Florida Defense Lawyers Ass'n.

LETTS, Judge.

Before us is the consolidation of eight appeals, all emanating from a 12.47 million dollar compensatory damage award in a medical malpractice case. That sum is appealed as reversibly excessive, as is the trial Also appealed is the upholding of the section in the medical malpractice statute awarding attorney's fees to the prevailing party. Section 768.56. We likewise affirm this ruling. However, we reverse the award of 4.4 million dollars found to be "reasonable attorney's fees" under that same section of the statute.

judge's ruling that Section 768.54(3)(e)(3) of the Florida statute limiting the payout of the award is unconstitutional. Further, Section 768.54(2)(b) limiting the liability of the health care provider to $100,000 per claim was likewise found to be unconstitutional. In addition the trial court found Section 768.51 of the Florida statutes to be inapplicable, or in the alternative, unconstitutional. We affirm all of the above.

The only other issue addressed, is the ruling permitting into evidence an account, written in the first person, purporting to describe the turmoil of emotions which a helpless patient must endure when a respirator malfunctions. We affirm.

FACTS

It is hard to imagine a more tragic scenario. A young, attractive woman, hospitalized after an auto accident, required treatment in the intensive care unit after surgery and was placed on a respirator which malfunctioned. As a consequence, the air supply was interrupted and irreversible brain damage ensued, condemning the plaintiff to a forty year life expectancy as a pathetic, half-blind, hopelessly bedridden, painracked incompetent who nevertheless can recognize people and respond to sounds, love, and touch. In the poetic words of her counsel, "she is a prisoner in her own helpless body and must experience the ultimate nightmare every waking moment of the remainder of her tragically destroyed life."

REASONABLENESS OF VERDICT

We begin with a discussion on whether the jury award is reversibly excessive and we cannot find it so.

It is large, even enormous, yet, it is not without basis. With testimony projecting a life expectancy of 40 years and evidence that the present day annual cost of ideal care for this patient is $188,400, simple arithmetic multiplies to over 7.5 million dollars. To that we must add past medical and nursing care, past and future loss of earnings, and last but by no means least, pain and suffering. The Patient's Compensation Fund and the Hospital argue under Loftin v. Wilson, 67 So.2d 185, 190 (Fla.1953), that the over 4 million dollars in future pain and suffering will mean nothing to her because she "is barely sentient." However, this plaintiff, unfortunately for her perhaps, possesses all the senses in varying degree, is no longer on a respirator, has some understanding, and must endure incessant pain and suffering. As we said in City of Tamarac v. Garchar, 398 So.2d 889, 896 (Fla. 4th DCA 1981),

Much has been written regarding the review of verdict amounts but few definitive rules have been enunciated by the courts. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977) and School Board of Palm Beach County, Inc. v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978).

One rule is definitive, however, and that is "a party who assails the amount of a verdict as excessive has the burden of showing it is unsupported by the evidence or that the jury was influenced by passion or prejudice." See Talcott v. Holl, 224 So.2d 420 (Fla. 3d DCA 1969). Nevertheless the over 4 million dollar portion of this verdict for 12.47 million dollars that was allocated to future pain and suffering does give cause for concern and we must ask: Is it within the "reasonable range" prescribed in the Bould v. Touchette decision, supra? It is admittedly at the maximum of any reasonable range but we decline to override the jury and label it unreasonable. Forty years imprisonment within a helpless body racked with pain and requiring nearly $200,000 worth of medical care each year can hardly be equalled by all the tortures of the damned.

PAYOUT AND LIMITATION OF LIABILITY

Passing next to the question of whether the trial court erred in declaring Sections First of all, we are of the opinion that it is the 1981 version of Section 768.54(3)(e)(3) which governs. The tragedy occurred in December of 1980 and the new statute was not effective until July of 1982. Statutes must not be given retroactive application unless an intent to do so is clearly expressed, Dade County v. Ferro, 384 So.2d 1283 (Fla.1980) or unless the statute is merely procedural, remedial or affects the measure of damages. Heilmann v. State, 310 So.2d 376 (Fla. 2d DCA 1975). In the case at bar, we are firmly of the opinion that this statute affects a substantive matter (indeed the Fund, on p. 15 of its initial brief, agrees) and that no change in the measure of damages is involved here, only the method of payout. We also reject the Fund's argument that retroactive application is not required because the plaintiff's rights do not vest until this decision is published.

768.54(2)(b) and 768.54(3)(e)(3), Florida Statutes (1981) unconstitutional when applied to the facts of this case, we conclude that it did not.

The content of the trial judge's order which we deem pertinent reads as follows:

Section 768.54 provides generally that all privately owned hospitals must join the "Florida Patient's Compensation Fund", and that if they comply with the statute they "shall not be liable for an amount in excess of $100,000.00 per claim". The statute shifts the obligation to pay any judgment in excess of this amount to the fund, but limits the fund's obligation to pay the judgment (after a lump-sum payment has been made for attorney's fees and costs) to "not more than $100,000.00 per person per year until the claim has been paid in full". To the extent that the statute creates a trust fund in the nature of liability insurance for the hospital, the Court does not find it constitutionally offensive. To the extent that the statute restricts the plaintiff's right to recover her judgment from the hospital and that fund, however, it violates several fundamental provisions of both the Florida and United States Constitutions when applied to the facts in this case.

After a careful study of the statute, the Court has concluded that it does not contemplate the entry of judgments against the hospital and fund limited to the amounts set forth in the statute; instead, it clearly contemplates that judgments for the full amount of the jury's verdict be entered against the hospital and the fund, and then merely controls the manner in which those judgments are to be paid. That conclusion is compelled by the following portions of the statute: subsection (2)(b); subsection (3)(a); subsection (3)(e). Once it is recognized that the statute imposes no substantive limitation upon the plaintiff's right to judgments in the full amount of her damages, and that the statute merely prevents collection of the judgments except on the terms prescribed by the statute, it is clear that the statute does nothing more than direct this Court how to enforce collection of the judgments. This type of legislative direction is unconstitutional, however, because it impermissibly encroaches upon powers granted exclusively to the judicial branch of our government. It is settled that a trial court with constitutional jurisdiction to render a final judgment has "the inherent power ... to enforce collection of its judgments". STATE ROAD DEPARTMENT v. BANKERS LIFE & CASUALTY CO., 166 So.2d 234, 235 (Fla. 3rd DCA 1964). It is also settled that "[t]he legislature has no power to prescribe rules regulating the conduct of the Court's business or other matters within the inherent power of the Court to regulate". SYDNEY v. AUBURNDALE CONSTRUCTION CORP., 96 Fla. 688, 119 So. 128, 129 (1928). Since both of these propositions are settled, it is clear that § 768.54 ¹ is unconstitutional--because it attempts to The statute also violates both the equal protection and due process clauses of the Florida and United States Constitutions. The "tests" to be applied to the statute in measuring its constitutionality against both of these clauses are essentially the same:

limit this Court's inherent power to enforce the...