MURRAY COHEN, M.D., PETITIONER,
v.
THE HONORABLE WILLIAM CLAYTON JOHNSON, CIRCUIT JUDGE OF THE CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA, FRIEDA COHEN AND HARRY COHEN, HER HUSBAND, RESPONDENTS
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Dr. Cohen challenged the admissibility of a medical mediation panel's finding in a medical malpractice suit, arguing the panel lacked jurisdiction because the hearing was not commenced within six months as required by statute. The court held that a circuit court is the proper forum to contest panel admissibility on jurisdictional grounds and reversed the trial court's order allowing the panel's evidence.
A circuit court in a medical malpractice case is the proper forum to contest the admissibility of a mediation panel's finding when the objection is based on the panel's lack of jurisdiction. A panel lacks jurisdiction if an extension order is entered but the hearing is not commenced within six months from the filing date, and evidence from such a panel is inadmissible.
[1] A medical mediation panel's jurisdiction terminates if a hearing has not commenced within six months from the date of filing the claim, even if an extension order was ent…
[2] The jurisdiction of a medical mediation panel cannot be extended by court order or stipulation of the parties.
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Join FLexlaw to unlock all legal intelligence“the jurisdiction of the panel terminates if an extension order has been entered but the hearing has not been commenced within six months from the date of the filing of the claim”
Establishes the statutory basis for the panel's loss of jurisdiction when the hearing was not timely commenced despite an extension order
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Join FLexlaw to unlock all legal intelligenceA medical mediation claim was filed on February 16, 1977. Although a hearing was initially scheduled within the six-month statutory period, it did not…
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[*390] BERANEK, Judge.
This matter has been considered on petition for writ of certiorari. Petitioner here is the defendant in a medical malpractice suit in the trial court. Respondents are the plaintiffs below. Respondents filed a medical mediation claim against the defendant doctor pursuant to Florida Statutes Section 768.44 (1977).
A hearing occurred and the decision of the panel was in favor of the plaintiffs and against the defendant doctor. Respondents thereafter filed a Circuit Court malpractice action. The case was scheduled for trial and prior to jury selection, counsel for petitioner moved the trial court to exclude the evidence of the finding of the mediation panel. It was the position of the defendant doctor that the mediation panel had acted without jurisdiction due to the fact that no final hearing had been commenced within six months from the date of the filing of the claim in accordance with Florida Statute Section 768.44 (1977).
The trial court denied the motion by order of February 14, 1979. In this, order the Court stated that the trial court was the improper forum in which to raise the issue of jurisdiction of the mediation panel.
The trial court ruled that the panel’s finding was admissible.
We disagree and reverse.
The mediation claim was filed February 16, 1977, and an order was entered extending the time for the hearing and the six-month limitation. A hearing was set within the six-month limitation provided in Florida Statute Section 768.44(3) (1977), but this hearing did not occur due to the unavailability of one of the panel members. • The hearing finally took place but was not begun until after the six-month limitation. According to the statute afore-cited and the Florida Rule of Medical Mediation Procedure 20.190, the jurisdiction of the panel terminates if an extension order has been entered but the hearing has not been commenced within six months from the date of the filing of the claim. See Stanton v. Community Hospital of South Broward, 359 So. 2d 37 (Fla. 4th DCA 1978); Mellor v. Arakgui, 359 So. 2d 36 (Fla. 4th DCA 1978); and Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978).
Further, jurisdiction of the panel may not be extended either by order of the court or by stipulation of the parties. Raedel v. Watson Clinic Foundation, Inc., 360 So. 2d 12 (Fla. 2d DCA 1978).
The results of a medical mediation panel proceeding generally becomes an admissible item of evidence pursuant to Section 768.44, Florida Statutes (1977), however, admissibility over particular asserted objections remains the prerogative of the trial court. We hold that a circuit court in a medical malpractice case is the proper forum in which to contest the admissibility of the finding of the panel in situations where an objection to the finding is based on an absence of jurisdiction of the panel. The fact that review by common law certiorari before a District Court may also be available and that such review was not sought does not waive the objection which may still be raised before the Circuit Court.
We conclude that the mediation panel here had no jurisdiction and, therefore, the ruling of the panel was one reached without jurisdiction. As such, it may not be admitted into evidence in the subsequent medical malpractice action and the trial court erred in ruling to the contrary. The order of the trial court is, therefore, reversed and the matter remanded for further proceedings consistent herewith.
REVERSED AND REMANDED.
LETTS and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Aldana v. Holub, 381 So. 2d 231 (Fla. 1980)…n hearing could not be commenced within ten months due to the untimely demise of the attorney member of the panel. In spite of this personal tragedy, the district court found mediation jurisdiction to have terminated. Similarly, in Cohen v. Johnson, 373 So. 2d 389 (Fla. 4th DCA 1979), the physician defendant was deprived of mediation because no hearing was conducted within the six-month limitation due to the unexplained unavailability of one of the panel members. The unavailability of the judicial referee cos…1 / 2
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Morris Wimpey et ux. v. Gabriel A. Sanchez, M.D., 386 So. 2d 1241 (Fla. 3d DCA 1980)…osition that in a case such as the present one where hearing has not commenced, jurisdiction of the panel terminates six months from the date the claim is filed and, accordingly, the statute of limitations is tolled for six months. Cohen v. Johnson, 373 So. 2d 389 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So. 2d 1172 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So. 2d 12 (Fla. 2d DCA 1978); Green v. Broward General Medical Center, 356 So. 2d 877 (Fla. 4th DCA 1978).6 However, the law…
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Roberts v. Casey, 413 So. 2d 1226 (Fla. 5th DCA 1982)…ercise of due diligence; . . . . Art. I, § 21, Fia.Const. .See Parker v. Knorr, 383 So. 2d 776 (Fla. 5th DCA 1980); Serrill v. Hilderbrand, 382 So. 2d 316 (Fla. 2d DCA 1979); Wright v. Ratnesar, 373 So. 2d 431 (Fla. 2d DCA 1979); Cohen v. Johnson, 373 So. 2d 389 (Fla. 4th DCA 1979); Hirsch v. Kleinman, 375 So. 2d 362 (Fla. 4th DCA 1979); Hewitt v. Caffee, 368 So. 2d 1342 (Fla. 3d DCA 1979); Diggett v. Conkling, 368 So. 2d 74 (Fla. 4th DCA 1979); Shore v. Abbazia, 375 So. 2d 354 (Fla. 3d DCA 1979); Raedel v.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. Broward Gen. Med. Ctr. & Dr. C. L. Reid, 356 So. 2d 877 (Fla. 4th DCA 1978)
- Raedel v. Watson Clinic Found., Inc., 360 So. 2d 12 (Fla. 2d DCA 1978)
- Stanton v. Cmty. Hosp. OF S. Broward, 359 So. 2d 37 (Fla. 4th DCA 1978)
- Kaye v. Fla. Real Est. Comm'n, 359 So. 2d 36 (Fla. 4th DCA 1978)
- Mellor v. Arakgui, 359 So. 2d 36 (Fla. 4th DCA 1978)