Florida Patient's Compensation Fund v. Von Stetina

Decision Date16 May 1985
Docket NumberNos. 64237,64251 and 64252,s. 64237
Citation10 Fla. L. Weekly 286,474 So.2d 783
Parties10 Fla. L. Weekly 286, 10 Fla. L. Weekly 480 FLORIDA PATIENT'S COMPENSATION FUND, et al., Appellants v. Susan Ann VON STETINA, etc., et al., Appellees.
CourtFlorida Supreme Court

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

Bruce Culpepper and F. Townsend Hawkes of Culpepper, Beatty and Turner, Tallahassee, and Richard A. Sherman, Fort Lauderdale, amicus curiae for The Florida Medical Malpractice Joint Underwriting Ass'n.

R.J. Beckham of Beckham and McAliley, Jacksonville, amicus curiae for John E. Mathews and Gwendolyn G. Mathews.

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


This is an appeal from Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983), in which the Fourth District Court of Appeal affirmed a $12.47 million medical malpractice verdict and held unconstitutional sections 768.54(2)(b), 768.54(3)(e)3, and 768.51, Florida Statutes (1981), which relate to hospital liability limitation and the method to be used by the Florida Patient's Compensation Fund ("Fund") in paying final judgments.

The district court upheld the constitutionality of section 768.56, Florida Statutes (1981), which authorizes the trial court to award reasonable attorney's fees to the prevailing party in medical malpractice cases, but reduced the fee awarded to the appellees' attorney from $4.4 million to $1.5 million. We have jurisdiction, article V, section 3(b)(1) and (3), Florida Constitution. We reverse the decision of the district court holding the subject statutes unconstitutional. We also vacate the judgment and remand for a new trial.

On November 26, 1980, Von Stetina, then 27 years of age, was injured in an automobile accident. She was taken to the emergency room at Florida Medical Center, where doctors determined that she had sustained abdominal injuries and a fractured femur and wrist, but no serious head or neurological injuries. Shortly after she arrived at the medical center, a surgeon removed her spleen and portions of her liver and pancreas. At trial, the surgeon testified that Von Stetina came through the operation "very nicely" and that the prognosis for her recovery was good.

Following the operation, Von Stetina was placed in the hospital's intensive care unit and connected to a mechanical ventilator to assist her in breathing. She was taken off the ventilator the next day because she could breathe adequately on her own. Although heavily sedated, she was able to communicate with her family and nurses. On December 1, she underwent trauma-induced respiratory distress, a condition which is not uncommon for post-surgery patients. She was then placed on a ventilator which is designed to breathe for the patient, rather than to merely assist the patient in breathing. A muscle-paralyzing drug was administered to temporarily paralyze Von Stetina so as to avoid malfunctions, patient-machine disconnections, and air supply interruptions which may occur when a patient "fights" this type of ventilator. Testimony indicated that Von Stetina needed a dose of the drug every forty-five minutes to ensure her compatability with the ventilator. Von Stetina's hospital chart shows that on the morning of December 3, the final dosage of the muscle-paralyzing drug was administered at 1:30 a.m. No notations were recorded in her chart after 2:00 a.m. At 3:28 a.m., while obtaining medication for another patient in the intensive care unit, a nurse observed that Von Stetina's cardiac monitor revealed a dangerously low heart rate. She immediately initiated a "code blue" emergency process during which Von Stetina's heartbeat was restored. The evidence disclosed that Von Stetina suffered severe brain damage because of an interruption of her oxygen supply. The hospital's chief of staff testified that tests reflected an oxygen loss occurred during the critical period of time, indicating there had in fact been a respirator malfunction or disconnection. The hospital presented evidence that Von Stetina's brain damage could have been caused by respiratory distress rather than by a respirator malfunction and that Von Stetina lacks capacity to appreciate the tragedy that has befallen her.

Von Stetina offered evidence that she feels pain and reacts to it with facial grimaces and contortions and by crying out, that she recognizes and reacts to people, and that she responds to music, affection, and the touch of a human hand. Von Stetina also introduced into evidence, over defense counsel's objection, a nurses' journal article entitled "Just Breathing," which had been written by a nurse and was part of the training materials used in an in-service program offered by the hospital. The article, purportedly based on experiences of ventilator patients, evokes the mental trauma of total dependence on a ventilator and paralysis required for effective ventilation.

After sustaining brain damage, Von Stetina was blinded in one eye by the hospital's failure to keep the eye lubricated properly and taped shut. In addition, her partially healed leg was refractured without explanation. The evidence is unrefuted that these later injuries were caused by substandard care. The evidence further establishes that Von Stetina has a life expectancy of 40 years, but that her quality The jury found that the negligence of the hospital caused Von Stetina's condition and, in a special verdict, determined the component damages to be as follows:

of life can be best enhanced through round-the-clock nursing care.

                Past medical and nursing care  $   125,000
                Future medical and nursing
                  care                           7,536,000
                Past loss of earnings               16,250
                Future loss of earnings            663,000
                Past pain and suffering            133,000
                Future pain and suffering        4,000,000
                    Total                      $12,473,250

Although the hospital continues to contest the validity of the jury's determination of liability, the Fund does not, conceding that evidence of negligence was sufficient for the jury to find the hospital liable.

In entering judgment in accordance with the verdict, the trial court held unconstitutional the portion of section 768.54(2)(b) that modifies the law on joint and several liability and shifts to the Fund the obligation to pay the portion of any judgment that exceeds $100,000. The court also found unconstitutional section 768.54(3)(e)3, as it existed in 1981, which restricted the Fund's obligation to pay "not more than $100,000 per person per year until the claim has been paid in full," and refused to apply the 1982 amendment to that section, which eliminates the $100,000 maximum pay-out. The trial judge found the above sections unconstitutional on the grounds they attempt to limit the court's inherent power to enforce judgments and violate both the equal protection and due process clauses of the Florida and United States Constitutions. The trial judge also found unconstitutional section 768.51, Florida Statutes (1981), which provides for the Fund to compensate claimants whose future losses exceed $200,000 in a manner to be determined by the court, because it "impermissibly encroaches upon the inherent power of this court to enter and enforce its judgments," and "arbitrarily and invidiously discriminates against medical malpractice victims who have suffered damages in excess of $200,000."

In considering the attorney's fee for Von Stetina's counsel, the trial court upheld the constitutionality of section 768.56, Florida Statutes (1981), which provides for the prevailing party to be awarded attorney's fees in malpractice actions. Von Stetina's counsel had contracted to represent her for a forty percent contingency fee. In setting the fee at $4.4 million, the trial judge stated that he relied heavily upon the contingency factor. Two expert witnesses produced by Von Stetina testified that fees of $5 million and $4.988 million would be appropriate, the latter figure equalling forty percent of the amount of the verdict.

The district court of appeal agreed with the trial court that sections 768.54(2)(b) and (3)(e)3 and 768.51, Florida Statutes (1981), are unconstitutional, and adopted to a large extent the trial court's reasoning. The district court found that the nurses' journal article was erroneously admitted because the appellant did not lay a predicate that Von Stetina or any other patient had actually experienced the thoughts and emotions depicted under similar circumstances. It found the evidence to be cumulative and concluded that the error was harmless. The district court also refused to set aside the jury award as excessive, recognizing that it was "admittedly at the maximum of any reasonable range," but concluding that "[f]orty 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." 436 So.2d at 1024.

The district court also affirmed the trial court's holding that section 768.56 was constitutional, but concluded that the trial court's award of a $4.4 million attorney's fee was an "abuse of discretion under the facts," determining that the trial judge had accorded too much weight to an appropriate contingency percentage, while giving...

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