State ex rel. Mercy Hospital, Inc. v. Vann, 76--2285

• Decision Date: 01 March 1977
• Docket Number: No. 76--2285,76--2285
• Citation: 342 So.2d 1073
• Parties: STATE of Florida ex rel. MERCY HOSPITAL, INC., a Florida Corporation, Relator, v. The Honorable Harold VANN et al., Respondents.
• Court: Florida District Court of Appeals

Page 1073

342 So.2d 1073

STATE of Florida ex rel. MERCY HOSPITAL, INC., a Florida Corporation, Relator, v. The Honorable Harold VANN et al., Respondents.

No. 76--2285.

District Court of Appeal of Florida, Third District.

March 1, 1977.

Thornton, Dougherty & Conroy and John Edward Herndon, Jr., Miami, for relator.

Stuart L. Simon, County Atty. and Jon I. Gordon, Asst. County Atty., for respondents.

Before HENDRY, C.J., and PEARSON and HAVERFIELD, JJ.

PER CURIAM.

This court was presented with a petition for the issuance of an alternative writ of mandamus by Mercy Hospital, Inc. The burden of the petition was that the hospital, as defendant in a medical liability mediation proceeding, pursuant to Section 768.133, et seq., Florida Statutes (1975), ¹ was being deprived of the benefit of that law by the action of the circuit judge. The petition alleged a clear legal right in the relator to an order of the circuit court directing the panel to proceed under the above cited law. ²

The alternative writ was issued and the only response filed thereto was by the circuit judge, which stated:

'. . . in the event this Court determines that his Order of November 22, 1976 . . . is in error and that the Medical Mediation Panel, of which he is a member, does possess jurisdiction pursuant to Chapter 768 of the Florida Statutes, he will most respectfully comply with this Court's Opinion without the necessity of the issuance of an Alternative Writ of Mendamus.'

The uncontroverted allegations of the petition are, in salient part, as follows:

'2. On or about October 21, 1975, Respondents ESTHER and GUSTAVO CASTANEDA, pursuant to Florida Statutes Section 768.133, filed a complaint and claim for Medical Mediation against the Relator, MERCY HOSPITAL, INC., and served the same on October 30, 1975.

'3. Pursuant to the requirements of Section 768.133 of the Florida Statutes, the Relator answered the claim for medical mediation within the prescribed time period.

'5. On or about January 23, 1976, THE HONORABLE HAROLD VANN, Respondent herein, and Judicial Referee of the Panel, entered an Order appointing Respondents ALAN JOEL REICH and BARRY L. GARBER as the remaining members of the Respondent Panel.

'6. On or about March 1, 1976, the aforesaid Respondents, ESTHER and GUSTAVO CASTANEDA filed with the Panel a Motion to Stay the Proceedings then currently pending.

'7. On or about March 4, 1976, the Respondent, THE HONORABLE HAROLD VANN, entered an Order staying the proceedings pending a determination by the Supreme Court of Florida as to the constitutionality of Section 768.133 Et seq. of the Florida Statutes.

'8. Subsequent to the Florida Supreme Court decision of Carter vs. Sparkman, 335 So.2d 802 (Fla.1976), which determined the constitutionality of Section 768.133 of the Florida Statutes, the Relator, MERCY HOSPITAL, filed a Motion to Dissolve the Order staying the proceedings on or about October 29, 1976.

'9. On or about November 22, 1976, the Respondent, THE HONORABLE HAROLD VANN, signed an Order stating that the Mediation Panel was without jurisdiction in Medical Mediation Case No. 75/40 on the ground that the case had been pending for a period of longer than ten months.'

This court having determined upon the issuance of the alternative writ that the petition made a prima facie case and the factual matters therein contained having been admitted by the respondents and the respondent judge having further certified his desire to follow the directions of this court, it is incumbent upon us, by this opinion, to set forth the duty of the respondent and the basis for our decision herein. See State ex rel. Lawler v. City of West Palm Beach, 125 Fla. 626, 170 So. 697, 699 (1936).

It is clear that the trial judge, in refusing to proceed with the arbitration, felt that the following section of the law forbade him to proceed:

'(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.' (Emphasis added)

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