PATRICK M. DUFFY, M.D., AND PHYSICIANS PROTECTIVE TRUST FUND, APPELLANTS,
v.
BETTY BROOKER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RONALD BROOKER, DECEASED, APPELLEE
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Appellants Patrick Duffy, M.D. and Physicians Protective Trust Fund sought review of an order denying appellate attorney fees to the appellee in a medical malpractice case. The court affirmed the denial, holding that section 766.206(3) does not authorize appellate attorney fees and that section 59.46 does not apply to sanctions under the medical malpractice statute.
The court held that section 766.206(3) does not authorize payment of attorney fees to the 'prevailing party' as contemplated by section 59.46, and therefore section 59.46 is inapplicable. The limited sanction under section 766.206(3) makes only the person mailing the noncomplying presuit response personally liable for reasonable attorney fees and costs incurred during investigation and evaluation of the claim, not appellate fees.
[1] A statute providing for attorney's fees to the prevailing party is construed to include fees on appeal in the absence of contrary intent.
[2] A statute imposing personal liability for attorney's fees and costs upon a party who fails to comply with reasonable investigation requirements in a medical malpractice c…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 766.206(3) imposes a limited sanction on the person mailing the noncomplying presuit response to the malpractice claim, making that person personally liable for the reasonable attorney's fees and costs of the claimant incurred during the investigation and evaluation of the claim. It does not authorize payment of attorney fees to the "prevailing party" as contemplated by section 59.46, which we find inapplicable in this situation.”
Core holding distinguishing between the limited sanction under 766.206(3) and the broader 'prevailing party' attorney fee provisions of 59.46
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellee Betty Brooker, as personal representative of Ronald Brooker's estate, filed a medical malpractice claim. The defendant(s) filed a presuit…
The full statement of facts, procedural history, and disposition for this case are member content.
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BARFIELD, Judge.
When appellee sought appellate attorney fees, relying on sections 766.206(3) and 59.-46, Florida Statutes, we denied the motion. She now seeks to have us reconsider that denial. She argues that the award of attorney fees pursuant to section 766.206(3) is mandatory, asserting that it is “non-disere-tionary and contingent only upon prevailing on the issue of reasonable investigation.” She also contends that section 59.46 is “non-discretionary and would appear to require a mandatory award of fees once entitlement at the trial level is established.” She suggests that in denying her motion, we “may have overlooked or been unaware of the mandatory nature of the attorney’s fee provisions in Sections 59.46 and 766.-206(3) Florida Statutes.” We have overlooked nothing.
Section 766.206(3). provides that if the trial court finds that the response rejecting the medical malpractice claim is not in compliance with the reasonable investigation requirements of chapter 766, the response shall be stricken and the person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney's fees and costs of the claimant,
(emphasis supplied). Section 59.46 provides:
In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.
(emphasis supplied).
Section 766.206(3) imposes a limited sanction on the person mailing the noncomplying presuit response to the malpractice claim, making that person personally liable for the reasonable attorney’s fees and costs of the claimant incurred during the investigation and evaluation of the claim. It does not authorize payment of attorney fees to the “prevailing party” as contemplated by section 59.46, which we find inapplicable in this situation.
Appellee not having cited in her motion for appellate attorney fees any legal authority which supports her entitlement to such fees, her motion for review of the denial of that motion is also DENIED.
BOOTH and MINER, JJ., concur.