Taddiken v. Florida Patient's Compensation Fund

Citation478 So.2d 1058,10 Fla. L. Weekly 571
Decision Date24 October 1985
Docket NumberNos. 65690,65730,s. 65690
Parties10 Fla. L. Weekly 571 Joyce M. TADDIKEN, et ux., Petitioners, v. FLORIDA PATIENT'S COMPENSATION FUND, Respondent. Carlyle S. FABAL, et ux., Petitioners, v. FLORIDA KEYS MEMORIAL HOSPITAL et al., Respondents.
CourtUnited States State Supreme Court of Florida

Robert M. Brake, Coral Gables, for Joyce M. Taddiken and Frank taddiken.

David J. White of Proenza and White, Miami, for Carlyle S. Fabal and Nancy G. Fabal.

Richard B. Collins and Robert W. Goldman of Perkins and Collins, Tallahassee, for respondents.

PER CURIAM.

These consolidated cases are before us pursuant to certified questions regarding the applicability to the Florida Patient's Compensation Fund (Fund) of section 95.11(4)(b), Florida Statutes (1977), providing for a two-year statute of limitations in medical malpractice actions against "health-care providers and persons in privity with the health care provider." 1 We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

A person filing a claim against a health-care provider covered by the Fund cannot recover against the Fund unless the Fund is named as a defendant in the suit, section 768.54(3)(f)1, Florida Statutes (Supp.1978). In both of the actions under review, the trial courts entered summary judgments in favor of the Fund when the plaintiffs attempted to join the Fund more than two years after the causes of actions against the health-care providers accrued, even though the medical malpractice actions were timely filed. In both cases the district court of appeal affirmed. Fabal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984); Taddiken v. Florida Patient's Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984). In Taddiken, the district court certified the question:

Whether a claim against the Florida Patient's Compensation Fund arises at the time of the alleged medical malpractice, rather than when judgment is entered against the tortfeasor, and is governed by the two year statute of limitations provided by Section 95.11(4)(b), Florida Statutes (1977), so that the Fund must be made or joined as a party defendant within two years after the malpractice action accrues?

Id. at 958.

Petitioners first argue that the joinder of the Fund subsequent to the expiration of the two-year statute of limitations should relate back to the filing of the initial complaint against the health care provider under McNayr v. Cranbrook Investments, Inc., 158 So.2d 129 (Fla.1963). We disagree. McNayr was an exception to the general rule that when a complaint is amended to name a new party defendant, the amendment does not relate back and the action is not commenced as to the added defendant until the amended complaint is filed. See Fla.Jur.2d Limitations §§ 76-77 (1982). The statute in McNayr specified that the comptroller be made a party defendant to a suit in equity for reduction of an annual ad valorem tax assessment. The decision turned on the wording of that statutory requirement:

It is our opinion that the word "maintained", as used in Sec. 196.14, "No suit or proceeding shall be maintained in any court of this state for the purpose of cancelling or contesting the validity of any tax assessment or tax certificate unless the comptroller of the state be made a party to such proceedings * * * " does not prohibit the institution of an action, but, if challenged, further action is stayed pending compliance with this law. (Citations omitted; emphasis supplied.)

158 So.2d at 130. Moreover, there was no specific statutory requirement in McNayr that the comptroller be joined within the period for bringing the suit. McNayr is factually distinguishable from the case under consideration and is therefore not dispositive.

The issue, then, is whether the Fund is in privity with the health care provider, as the statute unambiguously makes those in privity with the health care provider subject to the same two-year statute of limitations. Petitioners argue that insurance companies are excepted from statutes of limitations applicable to their insured, and therefore the Fund, being similar to an insurance company, should likewise be excepted from the health care providers' two year statute. Petitioners point out that the Fund, like an insurer, inter alia, pays claims from a pool of money for that purpose. The Fund counters that, unlike an insurer, the Fund is a nonprofit entity, a peculiar creature of statute that must be joined in the lawsuit against a health care provider participating in the Fund.

The fact that the Fund is like an insurance company in some respects and unlike it in others neither makes it an insurance company nor resolves the issue of legislative intent regarding treatment of the Fund. Indeed, the legislature treats the Fund differently from the way it treats a private insurance company in a most important respect: a private insurance company may not be joined in an action against its insured, section 627.7262, Florida Statutes (Supp.1982); Van Bibber v. Hartford Accident and Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), while the Fund must be joined in order for a claimant to recover from it, section 768.54(3)(f)1, Florida Statutes (Supp.1978). In Florida Patient's Compensation Fund v. Von Stetina, 474 So.2d 783 (Fla.1985), we explained the reason for the creation of the Fund as follows:

In 1975, the Florida Legislature instituted the Fund as a non-profit entity to provide medical malpractice protection to the physicians and hospitals who join it, as well as a method of payment to medical malpractice plaintiffs. See ch. 7509, Laws of Fla. The Fund provides a statutory scheme of pooling the risk of losses and placing major losses in the entity that can best spread the risk of loss as well as control the conduct of those at fault. Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983), appeal dismissed, 104 S.Ct. 1673 (1984). In its preamble to the 1976 amendment, the legislature summarized its public policy findings with respect to the need for the enactment. It reads, in part, as follows:

WHEREAS, despite the responsive and responsible actions of the 1975 session of the legislature, professional liability insurance premiums for Florida physicians have continued to rise and ... such insurance, even at exorbitant rates, is becoming virtually unavailable in the voluntary private sector, and ... this insurance crisis threatens the quality of health care services in Florida ... and ... this crisis also poses a dire threat to the continuing availability of health care in our state ... and ... our present tort law/liability insurance system for medical malpractice will eventually break down ... [and] fundamental reforms of said tort law/liability insurance system must be undertaken, and ... the continuing crisis proportions of this compelling social problem demand immediate and dramatic legislative action....

Ch. 76-260, Laws of Fla. See also ch. 75-9, Laws of Fla.

At 788. In view of the above considerations, it is apparent that the Fund is a unique entity created by statute that is not treated as an insurance company by the legislature.

In order for the Fund to fulfill its dual purposes of protecting health care providers and compensating malpractice victims, it must be actuarially sound. The legislature may well have determined that the joinder requirement would best...

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