Pysz v. Ande
| Decision Date | 06 April 1988 |
| Docket Number | 4-86-3124,Nos. 4-86-2834,s. 4-86-2834 |
| Citation | 523 So.2d 698,13 Fla. L. Weekly 855 |
| Parties | 13 Fla. L. Weekly 855 Steve PYSZ, Appellant, v. Williard F. ANDE, M.D., Appellee. |
| Court | Florida District Court of Appeals |
J. Mark Maynor of Beverly & Freeman, West Palm Beach, for appellant.
Debra J. Snow and Robert M. Klein of Stephens, Lynn, Chernay & Klein, P.A., Miami, for appellee.
This is an appeal from an order denying attorney's fees to the prevailing plaintiff in a medical malpractice action. Prior to trial, the plaintiff, Steve Pysz, settled with two codefendant pharmaceutical companies for $40,000, including costs and fees. After a trial with the remaining defendant, the plaintiff's doctor, the jury returned a verdict for $35,000. However, as the physician was found to be 51% negligent, a judgment was entered for $17,850. The court also awarded the plaintiff costs of $10,280.
It is undisputed that section 768.56, Florida Statutes (1983), which was repealed prior to trial, applies in this case. See Young v. Altenhaus, 472 So.2d 1152 (Fla.1985). That statute provides for the recovery of attorney's fees by the prevailing party in a malpractice action. The trial court here first determined that a reasonable fee, after adjustments, was $46,200. However, the lower court then recognized that the Supreme Court in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985), stated that a reasonable fee for a "prevailing party" cannot exceed the fee agreed upon between that party and his attorney. The trial court noted that the fee contract in this case provided for a fee of "fifty percent of any recovery...." The court reasoned that there was no "recovery" here because the plaintiff was faced with a set off against his judgment due to the larger settlement with the codefendants. See § 768.041(2), Fla.Stat. Thus, after the settlement proceeds from the pharmaceutical companies were set off against the plaintiff's judgment against the defendant physician, the result eliminated the amount recoverable against the physician.
Nevertheless, we conclude that neither the statute nor the agreement restrict the prevailing plaintiff's right to a judgment for reasonable fees, provided that it may not exceed the contract amount--in this case, fifty percent of the judgment. The plaintiff did "successfully" prosecute his claim. The defense had denied all liability. It is not contended that the defendant/doctor was the prevailing party. Therefore, the judgment does constitute a "recovery," albeit not collectable.
The final paragraph of the appellant's retainer agreement provides in part:
The client acknowledges and understands that in the event it becomes necessary to initiate a civil action for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; that the Court shall award a reasonable attorneys' fee to the prevailing party; ....
The plaintiff contends that this clause permits the award of the full reasonable attorney's fee. However, such a...
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...this cause since the acts of malpractice for which ORMC was sought to be held vicariously liable occurred in 1984. Pysz v. Ande, 523 So.2d 698 (Fla. 4th DCA 1988); Florida Patient's Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990); Couch v. Drew, 554 So.2d 1185 (Fla. 1st DCA 1989), af......
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Sybert v. Combs
...that an equal offset results in the seller collecting nothing does not alter or affect the attorney's fee provision, see Pysz v. Ande, 523 So.2d 698 (Fla. 4th DCA 1988), nor does the fact that the buyers might also have been entitled to fees because they prevailed on their counterclaim dimi......
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Florida Patient's Compensation Fund v. Moxley
...possibility of an excessive fee, a specter envisioned in Rowe. This holding does not conflict with our recent holding in Pysz v. Ande, 523 So.2d 698 (Fla. 4th DCA 1988), where this court construed a contract clause that sounds somewhat similar to the present contract provision. A careful an......