Quijano By and Through Quijano v. Florida Patient's Compensation Fund

• Citation: 13 Fla. L. Weekly 505,520 So.2d 656
• Decision Date: 23 February 1988
• Docket Number: No. 86-259,86-259
• Court: Court of Appeal of Florida (US)
• Parties: 13 Fla. L. Weekly 505 Gregory QUIJANO, a minor, By and Through his parents and next friends, Donald QUIJANO and Ana Quijano; and Donald Quijano and Ana Quijano, individually, Appellants, v. FLORIDA PATIENT'S COMPENSATION FUND, Appellee.

Page 656

520 So.2d 656

13 Fla. L. Weekly 505

Gregory QUIJANO, a minor, By and Through his parents and next friends, Donald QUIJANO and Ana Quijano; and Donald Quijano and Ana Quijano, individually, Appellants, v. FLORIDA PATIENT'S COMPENSATION FUND, Appellee.

No. 86-259.

District Court of Appeal of Florida,

Third District.

Feb. 23, 1988.

Sheldon J. Schlesinger and Diana Santa Maria, Fort Lauderdale, for appellants.

Thomas Post and Evan J. Langbein, Miami, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

On this appeal Quijano challenges an award of attorney's fees to the Florida Patient's Compensation Fund as a prevailing party under Section 768.56, Florida Statutes (1983), ¹ after summary judgment was entered for the Fund on undisputed evidence that no health care provider joined as a defendant was a member of the Fund. Section 768.56, Florida Statutes (1983), provides:

"[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 health maintenance organization."

Quijano contends, first, that the Fund is not among the persons specified in Section 768.56--that is, the Fund is not a "medical or osteopathic physician, podiatrist, hospital, or health maintenance organization"--on account of whose alleged malpractice the claim for damages was brought. It is true that attorney's fees may not be awarded where the person accused of the malpractice is not one of the persons specified in the statute. Tappan v. Florida Medical Center, Inc., 488 So.2d 630 (Fla. 4th DCA 1986) (suit alleging malpractice by chiropractor; prevailing chiropractor not entitled to fees); Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986) (suit alleging malpractice by nurse; prevailing plaintiff not entitled to have fees assessed against nurse). However, and contrary to Quijano's contention, it does not follow that attorney's fees may not be awarded to a person, such as the Fund, which is not one of the persons specified in the statute. The statute requires only that the underlying action for damages be on account of alleged malpractice committed by one of the specified persons; it does not require that a party, such as the Fund, which may be otherwise liable for that malpractice--and which is thereby joined as a defendant--need also be one of the specified persons in order to be entitled to attorney's fees. Thus, because the present case arose from the alleged malpractice of certain physicians and a hospital--persons specified in Section 768.56--the statute itself is no bar to--indeed authorizes--the recovery of attorney's fees by the Fund.

We also reject Quijano's further argument that Section 768.54(3)(f)(1), Florida Statutes (1983), mandates that the Fund pay its own attorney's fees. While the statute plainly provides that, in defending an action, "the fund shall retain counsel and pay out of the account for the appropriate year attorneys' fees and expenses, including court costs incurred in defending the fund," it most assuredly does not prohibit the Fund from seeking reimbursement as a prevailing party from an unsuccessful malpractice plaintiff. Cf. ...