Martin McFall Messenger Anesthesia Professional Ass'n v. Gershuny

528 So. 2d 1206, 13 Fla. L. Weekly 965, 1988 Fla. App. LEXIS 1499, 1988 WL 34010

Opinions

PER CURIAM.

The appellant association, a group of physicians, appeals a trial court order denying its motion for attorney’s fees made after the association was exonerated by a jury of allegations of negligence and injury made by the appellee. We reverse.

The trial court denied the fees because associations or other groups of health care providers are not specifically designated in the medical malpractice attorney’s fee statute, section 768.56, Florida Statutes (1983), which provides in part:

[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.

We cannot agree with the trial court’s interpretation of the statute. It is clear that the complaint by appellee was for medical malpractice by the group of physicians comprising the association. By seeking to hold these physicians liable, albeit as a collective group, we believe the appellee was subject to the provisions of section 768.56 in the event she failed to prevail.

We reverse and remand for the purpose of awarding appellant attorney’s fees.

ANSTEAD and STONE, JJ., concur. DELL, J., dissents with opinion.