Gup v. Cook
| Decision Date | 15 August 1991 |
| Docket Number | No. 74848,74848 |
| Citation | 585 So.2d 926 |
| Parties | Alex GUP, M.D., et al., Petitioners, v. Katherine COOK, et vir, Respondents. 585 So.2d 926, 16 Fla. L. Week. S505 |
| Court | Florida Supreme Court |
James M. Wilson of Harrell, Wiltshire, Swearingen, Wilson & Harrell, P.A., Pensacola, for petitioners.
William C. Baker, Jr., Pensacola, for respondents.
Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Eaton, Davis & Marks, P.A., Tallahassee, amicus curiae for Florida Patients Compensation Fund.
We have for review Gup v. Cook, 549 So.2d 1081 (Fla. 1st DCA 1989), in which the court certified conflict with Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We quash in part the decision of the district court below.
In 1977, Katherine Cook, a twenty-four-year-old mother of two, was pregnant with her third child. When she discovered blood in her urine, she was examined by Dr. Gup and several other urologists at the Medical Center Clinic (Clinic), who prescribed medication. She experienced no further urinary problems until two years later when she again found blood in her urine and was examined by a different urologist who determined that she had a malignant bladder tumor. Mrs. Cook underwent radical surgery to remove her bladder, uterus, right fallopian tube, and ovary. She sued Dr. Gup and the Clinic for negligence in failing to perform the proper diagnostic tests. She alleged that if the defendants had used due care the cancer could have been treated less drastically and her life expectancy would have been increased. The trial court denied the defendants' postverdict motion to limit the judgment pursuant to section 768.54(2), Florida Statutes (1977), and awarded Mrs. Cook $500,000 for future medical expenses and $500,000 for past and future pain and suffering, reduced by fifteen percent comparative negligence. The district court ruled that the defendants' motion to limit damages to $100,000 each was properly denied because the defendants failed to join the Florida Patients' Compensation Fund (Fund) as a party. The court affirmed the award with the exception of the portion for future medical expenses, for which it directed remittitur to $57,250 or a new trial.
The plaintiffs contend that the district court decision should be approved. They assert that the defendants are not entitled to the limitation on liability contained in section 768.54(2) because of the following. 1) The section acts to limit liability only between the health care provider and the Fund, not between the health care provider and the plaintiff. 2) The defendants failed to place $100,000 per claimant in an escrow account. 3) It is the defendant, not the plaintiff, who is required to join the Fund as a party and the present defendants failed to do so. 4) The defendant must plead the statutory limitation as an affirmative defense and the present defendants did not do so.
We have since decided issues 1), 3) and 4) adversely to the present plaintiffs in Tallahassee Memorial Regional Medical Center, Inc. v. Meeks, 560 So.2d 778 (Fla.1990), wherein we ruled that "the plaintiff must join the fund as a party defendant or the amount of recovery is limited to the statutory maximum amount of liability," id. at 781, and that "[t]here are no requirements ... that the health care provider must ... plead the statutory limitation as an affirmative defense." Id. at 780. As to the second issue, the plaintiffs point to section 768.54(2), which provides in part:
(b) A health care provider shall not be liable for an amount in excess of $100,000 per claim for claims covered under subsection (3) in this state if, at the time the incident giving rise to the cause of the claim occurred, the health care provider:
1. Had:
a. Posted bond in the amount of $100,000 per claim;
b. Proved financial responsibility in the amount of $100,000 per claim to the satisfaction of the board of governors of the fund through the establishment of an appropriate escrow account;
c. Obtained medical malpractice insurance in the amount of $100,000 or more per claim from private insurers or the Joint Underwriting Association established under subsection 627.351(7); or
d. Obtained self-insurance as provided...
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