Gershuny v. Martin McFall Messenger Anethesia Professional Ass'n
| Decision Date | 09 March 1989 |
| Docket Number | No. 72754,72754 |
| Citation | 14 Fla. L. Weekly 90,539 So.2d 1131 |
| Parties | 14 Fla. L. Weekly 90 Sophie GERSHUNY, Petitioner, v. MARTIN McFALL MESSENGER ANESTHESIA PROFESSIONAL ASSOCIATION, Respondent. |
| Court | Florida Supreme Court |
Larry Klein and Jane Kreusler-Walsh of Klein & Beranek, P.A., West Palm Beach, and Sheldon J. Schlesinger, P.A., Fort Lauderdale, for petitioner.
Rex Conrad and Susan L. Dolin of Conrad, Scherer & James, Fort Lauderdale, for respondent.
We have for review Martin McFall Messenger Anesthesia Professional Association v. Gershuny, 528 So.2d 1206 (Fla. 4th DCA 1988), to answer a question certified as one of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Sophie Gershuny was injured when she fell from her hospital bed after receiving electroconvulsive shock therapy. A certified registered nurse anesthesist had administered anesthesia to Gershuny prior to the treatment. Gershuny brought a medical malpractice suit against the nurse's employer, Martin McFall Messenger Anesthesia Association (the Association), which is comprised of physicians who practice anesthesiology.
At trial the jury found the Association was not negligent in its treatment of Gershuny. However, the trial court denied the Association's motion for attorney's fees because associations or other groups of health care providers are not specifically designated in the medical malpractice attorney's fees statute, section 768.56, Florida Statutes (1983). Section 768.56 provides, in part as follows:
[T]he court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or maintenance organization.
This Court has previously addressed the proper construction of section 768.56. In Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), we held that an award of attorney's fees is precluded against a nurse because nurses are not one of the enumerated health care professionals affected by the statute. We reached this conclusion for two reasons. First, the rule in Florida requires that statutes awarding attorney's fees must be strictly construed. Id. at 1243 (citing Thayer v. State, 335 So.2d 815 (Fla.1976)). Second, it is well settled that the mention of one thing in a statute implies the exclusion of those things not expressly mentioned. Id. (citing Roberts v. Carter, 350 So.2d 78 (Fla.1977)). Therefore, relying on these two principles, the Court determined recovery under section 768.56 is limited to those health care professionals specifically listed in the statute.
In this case the district court reasoned that Gershuny is subject to the provisions of section 768.56 because her suit was actually seeking to hold liable the group of physicians comprising the Association, and medical physicians are among those specifically enumerated in the statute. We disagree.
The Association is a professional service corporation organized under Chapter 621, Florida Statutes (1987). Chapter 621 was enacted to provide for the incorporation of an individual or group of individuals who perform the same professional service to the public for which they must be licensed. § 621.01, Fla.Stat. (1987). Section 621.07 addresses the liabilities of shareholders of a professional association and provides:
Nothing contained in this act shall be interpreted to abolish, repeal, modify, restrict, or limit the law now in effect in this state applicable to the professional relationship and liabilities between the person furnishing the professional services and the person receiving such professional service and to the standards for professional conduct; provided, however, that any officer, agent, or employee of a corporation organized under this act shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by him, or by any person under his direct supervision and control, while rendering professional service on behalf of the corporation to the person for whom such professional services were being rendered; and provided further that the personal liability...
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...fees must be strictly construed," Dade County v. Pena , 664 So. 2d 959, 960 (Fla. 1995) (quoting Gershuny v. Martin McFall Messenger Anesthesia Pro. Ass'n , 539 So. 2d 1131, 1132 (Fla. 1989) ). See generally Ocean Acc. & Guarantee Corp. v. Cauthen , 152 Fla. 420, 12 So. 2d 294, 295 (1943) (......
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