Stuart v. Hertz Corp., 79-978

• Citation: 381 So.2d 1161
• Decision Date: 12 March 1980
• Docket Number: No. 79-978,79-978
• Parties: Frank A. STUART, M.D., Frank A. Stuart, M.D., P.A., and Underwriters at Lloyds, Petitioners, v. The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.
• Court: Court of Appeal of Florida (US)

Page 1161

381 So.2d 1161

Frank A. STUART, M.D., Frank A. Stuart, M.D., P.A., and Underwriters at Lloyds, Petitioners, v. The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.

No. 79-978.

District Court of Appeal of Florida, Fourth District.

March 12, 1980.

Rehearings Denied April 21, 1980.

James E. Tribble and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.

Nancy Little Hoffman and Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, for respondents.

MOORE, Judge.

This is a petition for enforcement of a mandate issued by this Court, or in the alternative, a petition for writ of common law certiorari. Before discussing the merits of this petition, a brief review of the facts of this case and a more lengthy review of the circuitous procedural route taken by this case are necessary.

An automobile owned by respondent, Hertz Corporation (Hertz), collided with an automobile operated by a Mrs. Johnson who suffered orthopedic injuries in the accident. Mrs. Johnson underwent surgery performed by petitioner, Dr. Stuart, for these injuries. During the course of the surgery, Mrs. Johnson's carotid artery was allegedly severed, causing a neurological disability. Mrs. Johnson instituted suit against Hertz, who filed a third party complaint against petitioners seeking indemnity for any damages recovered as a result of the neurological injuries only. Petitioner's motion to dismiss the third party complaint was denied by the trial court.

Upon affirming the trial court's order denying the motion to dismiss the third party complaint, we stated:

(T)here is an equitable right to indemnity under certain factual considerations and particularly under the facts present in the case sub judice; a tortfeasor initially causing an injury has the right to seek indemnification against the physician for aggravating injury in the course of treatment. . . .

Stuart v. Hertz Corporation, 302 So.2d 187, 194 (Fla. 4th DCA 1974).

The Florida Supreme Court reversed our decision and held that such a third party action for indemnity could not be brought against the physician. Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977). The Court expressed several reasons for disallowing third party practice by an initial tortfeasor against a treating physician. First, the inclusion of the physician in the lawsuit would create a "hybrid doctrine of partial equitable indemnification which will most certainly lead to confusion and nonuniformity of application by the lower courts." 351 So.2d at 706. The Court believed that a third party suit for indemnity would in reality be more akin to contribution and implied that either of these theories of third party recovery are inappropriate to the situation involved in this case.

Secondly, the Court felt that such a third party suit would "confuse and obfuscate" the issue of the initial tortfeasor's liability and force the plaintiff to "concurrently litigate a complex malpractice suit in order to proceed with a simple personal injury suit." The Court stated that: "Thecomplex issues of liability to be resolved in a medical malpractice action are foreign to the resolution of liability in the typical personal injury suit. 351 So.2d at 706. The issue of physician malpractice in aggravating injuries caused by the initial tortfeasor would be more expeditiously litigated in a separate lawsuit.

Thirdly, a third party lawsuit would eliminate the choice of the plaintiff-patient to determine the "time, forum and manner in which to press his claim" against his own physician. "The choice of when and whether to sue a treating physician is a personal one which rightfully belongs to the patient." A "complete outsider" to the physician-patient relationship should not determine when or how (or if) a patient shall sue his physician.

For all of the above cited reasons the Supreme Court quashed the decision of this Court and remanded the cause to this Court for the purpose of a further remand to the trial court with instructions to grant the motion to dismiss the third party complaint.

This Court entered its order on the Supreme Court's mandate, remanding the cause to the trial court, "with instructions to grant the motion to dismiss in accordance with the opinion of the Supreme Court." The trial court entered its order of dismissal, reciting

. . . (T)he motion of the third party defendants to dismiss the third party complaint be and the same is hereby granted, with prejudice, only as to gravamen of present complaint.

(The emphasis is supplied to reflect the trial judge's handwritten amendment to the typewritten order prepared by counsel.)

However, the respondents' motion to file another third party complaint, based upon a theory of contribution, against the petitioners, was granted. The petitioners moved to dismiss this complaint. While that motion was pending a consent judgment was entered between respondent, Hertz, and the initial plaintiffs. A satisfaction of the consent final judgment was then filed. Thereafter, the respondents filed an amended third party complaint seeking contribution and subrogation. Because the trial court denied their motion to dismiss the amended third party complaint, the petitioners now seek...