Grobman v. Posey

Decision Date31 December 2003
Docket Number No. 4D02-747., No. 4D02-717
Citation863 So.2d 1230
PartiesLawrence R. GROBMAN, M.D., Lawrence R. Grobman, M.D., P.A., and SSJ Mercy Health System, Inc., d/b/a Mercy Hospital, and Mercy Hospital, Inc., d/b/a Mercy Hospital, Appellants, v. Elizabeth POSEY, individually and as parent and legal guardian of Justin Posey and Austin Posey, her minor children, Appellees.
CourtFlorida District Court of Appeals

Helen Ann Hauser of Dittmar & Hauser, P.A., Coconut Grove, and Manuel Epelbaum of Robert J. Dickman, P.A., Coral Gables, for appellants Lawrence R. Grobman, M.D., and Lawrence R. Grobman, M.D., P.A.

Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, Joel R. Wolpe and Isabel Negreira of Wolpe & Leibowitz, L.L.P., Miami, and Lewis W. Fishman of Lewis W. Fishman, P.A., Miami, for appellants SSJ Mercy Health System, Inc., d/b/a Mercy Hospital, and Mercy Hospital, Inc., d/b/a Mercy Hospital.

Edna L. Caruso of Caruso & Burlington, P.A., West Palm Beach, Scott M. Newmark and Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.


Dr. Lawrence R. Grobman and SSJ Mercy Health System, Inc. d/b/a Mercy Hospital appeal from an amended final judgment entered after a jury trial in a medical malpractice action.1

The issue we write to address is whether Grobman and Mercy Hospital, non-settling defendants, are entitled to a full setoff for sums paid by a settling defendant prior to trial. Because section 768.81, Florida Statutes (1995), did not apply to the causes of action asserted against the settling defendant, we hold that appellants are entitled to a setoff of the full amount paid in settlement.

In May 1995, Elizabeth Posey went to her primary care physician complaining of ear problems. Posey's physician noticed something in her ear and referred her to an ear, nose, and throat doctor, Dr. Brad Nitzberg, who ordered a CT scan. The scan disclosed a mass which was potentially a tumor, so Nitzberg referred Posey to a neuro-otologist, Dr. Grobman, for surgery.

On June 13, 1995, Posey went to Mercy Hospital for outpatient surgery to remove what was thought to be a vascular tumor in her middle ear. Dr. Grobman removed the "tumor," which was actually a congenital defect known as an aberrant carotid artery. Due to the massive blood loss Posey experienced and the unexpected complexity of the surgery, she was admitted to Mercy Hospital for overnight observation. Several hours after her admittance, Posey suffered a stroke.

In 1996, Posey and her husband2 filed a twelve-count complaint for medical malpractice against numerous defendants3 on behalf of themselves individually, and as parents of Justin and Austin Posey. The complaint was later amended.

Among the defendants were Dr. Grobman, who performed the surgery, Mercy Hospital, where the surgery was performed, Dr. Nitzberg, the doctor who referred Posey to Dr. Grobman, and Dr. Stuart Hantman, the radiologist who had initially read the CT scan of Posey's middle ear.

Significant for this opinion, Posey sued her HMO, treating Prudential Health Care Plan, Inc. and Prudential Insurance Company of America (collectively referred to in this opinion as "Prudential") as one entity. Against Prudential, Posey asserted two theories of liability: first, that Prudential was vicariously liable for the conduct of its agents, Grobman, Nitzberg, and Hantman and second, that Prudential was directly liable for negligently credentialing4 its health care providers, Grobman, Nitzberg, and Hantman.

Defendants Grobman and Mercy Hospital raised a defense under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), receded from in part by Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Nitzberg, Hantman, and Prudential settled with Posey prior to trial. Prudential settled for $1,250,000; that amount was not allocated between the causes of action against Prudential, nor was it allocated between economic and non-economic damages.

The trial proceeded against Grobman and Mercy Hospital. As for the Fabre defense, appellants requested that the jury apportion fault to Nitzberg, Hantman, and the anesthesiologist involved in the surgery. The defendants did not ask that the jury apportion fault to Prudential, which was not included on the verdict form.

The jury returned a verdict finding Grobman 90% negligent and Mercy Hospital 10% negligent. The jury found the three Fabre non-party doctors not negligent. The jury awarded damages of $5,663,812: past medicals of $134,000, future medicals of $2,000,000, past lost earnings of $137,444, future lost earning capacity of $862,368, past pain and suffering of $500,000, and future pain and suffering of $2,000,000. The jury awarded Posey's two children $75,000 each.

Among the post-trial motions filed by Grobman and Mercy Hospital were ones seeking a setoff of the amount Prudential paid in settlement of the case. The trial court denied the motions on the ground that the defendants' failure to have the jury decide whether Prudential was liable precluded their ability to claim a setoff.

Appellants' entitlement to a setoff turns on whether Prudential was a party defendant to which the apportionment requirement of section 768.81(3), Florida Statutes (1995)5 applied. If section 768.81(3) did not apply, then Prudential was not a proper Fabre defendant, and the failure to include it on the verdict form had no legal effect. A trilogy of supreme court cases has considered a non-settling defendant's entitlement to a setoff for sums paid before trial to the plaintiff by a settling defendant. See D'Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003); Gouty v. Schnepel, 795 So.2d 959 (Fla.2001); Wells, 659 So.2d at 253. All three cases attempt to reconcile the requirement of section 768.81(3) that "each defendant is solely responsible for his or her share of noneconomic damages," Wells, 659 So.2d at 252, with the setoff provisions of 768.041(2), 46.015(2), and 768.31(5), Florida Statutes (1995).

In D'Angelo, the supreme court limited its holding in Gouty and held that a "settling defendant does not have to be found liable before an economic damages setoff can be given." 863 So.2d at 316. To obtain a setoff for non-economic damages, D'Angelo maintained the Gouty requirement that a defendant must follow the procedure outlined in Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263-64 (Fla.1996): "[t]he nonsettling defendant is obligated to file appropriate pleadings and to ensure that any settling party under Fabre appears on the verdict form." D'Angelo, 28 Fla. L. Weekly at S842.

The key question is whether the holding in D'Angelo applies to this case.

Crucial to the trilogy of section 768.81 settlement cases is the assumption that section 768.81(3) applies to the claim against the settling defendant. In cases to which it applies, section 768.81 "eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages." D'Angelo, 863 So.2d at 314. Section 768.81 "applies to negligence cases, including professional malpractice cases." Id.; see § 768.81(4), Fla. Stat. (1995). Where section 768.81 applies, it limits the scope of the statutes regarding setoffs—sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes (1995). See D'Angelo, 863 So.2d at 314.

To decide whether section 768.81 applies requires more than determining whether the case at hand is a negligence case. One must examine the cause of action asserted against a settling defendant to determine if section 768.81 requires apportionment of liability with another defendant. Such an inquiry asks if the settling defendant was the type of defendant that could have been added as a Fabre defendant on the verdict form.

In Fabre, the supreme court wrote that "section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." 623 So.2d at 1185 (emphasis added). Under the doctrine of joint and several liability, "all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident." Id. at 1184. The impetus for enacting section 768.81 was the perceived unfairness of "requiring a defendant to pay more than his or her percentage of fault." Id. at 1185.

Section 768.81 requires apportionment of non-economic damages "in cases involving joint tortfeasors." Letzter v. Cephas, 792 So.2d 481, 487 (Fla. 4th DCA 2001). Joint tortfeasors are "`[t]hose who act together in committing wrong, or whose acts if independent of each other, unite in causing a single injury.'" Id. at 486 (quoting Ass'n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 529 n. 3 (Fla. 5th DCA 1999) (Harris, J., dissenting) (quoting BLACK'S LAW DICTIONARY 752-53 (5th ed.1979))). In Hudson v. Weiland, 150 Fla. 523, 8 So.2d 37 (1942), the supreme court described the joint and several liability of joint tortfeasors:

[W]here the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable although there was no common duty, common design or concerted action.

Id. at 38 (emphasis in original).

Central to the concept of joint and several liability covered by section 768.81 is the idea that a potential defendant caused or contributed to a plaintiff's injury, that a defendant's negligence "concurred" with that of another defendant to produce an injury. Theoretically, fault can be allocated among negligent defendants whose conduct concurred in causing the plaintiff's injury.

Vicarious liability does not mesh with the concept of liability that can be apportioned among joint tortfeasors. The vicariously liable party is responsible to the plaintiff to the same...

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