SC01-348 Mary Chester v. Victor Doig, M.D.

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State: Florida

Court: Supreme Court

Docket No: sc01-348

Case Date: 02/06/2003

Plaintiff: SC01-348 Mary Chester

Defendant: Victor Doig, M.D.

Preview:Supreme Court of Florida
No. SC01-348
MARY CHESTER, etc.,
Petitioner,
vs.
VICTOR DOIG, M.D.,
Respondent.
[February 6, 2003]
QUINCE, J.
We have for review a decision of the Fifth District Court of Appeal on the
following question, which the court certified to be of great public importance:
IS IT APPROPRIATE TO SETOFF AGAINST THE
NONECONOMIC DAMAGES PORTION OF AN AWARD
AGAINST ONE TORTFEASOR IN AN ARBITRATION OF A
MEDICAL MALPRACTICE ACTION THE AMOUNT
RECOVERED FROM SETTLEMENT FROM ANOTHER
RESPONSIBLE FOR THE SAME INCIDENT CAUSING THE
INJURY?
Doig v. Chester, 776 So. 2d 1043, 1047 (Fla. 5th DCA 2001).   We have

jurisdiction.   See art. V, § 3(b)(4), Fla. Const.   For the reasons expressed below,
we answer the certified question in the negative and quash the Fifth District’s
decision.
BACKGROUND
Mary Chester (Chester) asserted that her husband died as the result of
medical malpractice and blamed both respondent Dr. Doig and Halifax Hospital for
his death.   Chester settled with Halifax Hospital for $150,000 during presuit
proceedings (the settlement award) and then arbitrated with Dr. Doig and recovered
$507,321 (the arbitration award).   Of the $507,321 recovered from Dr. Doig,
$210,321 was designated for economic damages,1                                          $250,000 was designated for
noneconomic damages,2 and $47,000 was for attorney's fees.   The arbitrators
1.   Section 766.202(3), Florida Statutes (1997), defines economic damages
as:
“Economic damages” means financial losses which would not have
occurred but for the injury giving rise to the cause of action, including,
but not limited to, past and future medical expenses and 80 percent of
wage loss and loss of earning capacity.
2.   Section 766.202(7), Florida Statutes (1997), defines noneconomic
damages as:
“Noneconomic damages” means nonfinancial losses which would not
have occurred but for the injury giving rise to the cause of action,
including pain and suffering, inconvenience, physical impairment,
mental anguish, disfigurement, loss of capacity for enjoyment of life,
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found that Dr. Doig was not entitled to a setoff based on the settlement award.   Dr.
Doig appealed the arbitrators’ finding that he was not entitled to a setoff, and on his
second motion for rehearing, the Fifth District reversed the arbitration panel with
directions to apply a setoff.   See Doig, 776 So. 2d 1043.   The issue before this
Court is whether the arbitration award should be set off (reduced) by the settlement
award.
DISCUSSION
The arbitration provisions of Florida’s Medical Malpractice Act allow an
arbitration panel to determine damages in a medical malpractice claim once presuit
investigation has been completed.   See §§ 766.207-766.212, Fla. Stat. (1997).   The
arbitration provisions were enacted to provide “[s]ubstantial incentives for both
claimants and defendants to submit their cases to binding arbitration, thus reducing
attorneys’ fees, litigation costs, and delay.”                                            § 766.201(2)(b), Fla. Stat. (1997).   In
this case, Chester agreed to submit to binding arbitration with Dr. Doig, and under
section 766.207(7), the following limitations on damages apply:
(7)   Arbitration pursuant to this section shall preclude recourse to any
other remedy by the claimant against any participating defendant, and
shall be undertaken with the understanding that:
(a)   Net economic damages shall be awardable, including, but not
limited to, past and future medical expenses and 80 percent of wage
and other nonfinancial losses.
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loss and loss of earning capacity, offset by any collateral source
payments.
(b)   Noneconomic damages shall be limited to a maximum of
$250,000 per incident, and shall be calculated on a percentage basis
with respect to capacity to enjoy life, so that a finding that the
claimant’s injuries resulted in a 50-percent reduction in his capacity to
enjoy life would warrant an award of not more than $125,000 in
noneconomic damages.
(c)   Damages for future economic losses shall be awarded to be paid
by periodic payments pursuant to s. 766.202(8) and shall be offset by
future collateral source payments.
(d)   Punitive damages shall not be awarded.
(h)   Each defendant who submits to arbitration under this section shall
be jointly and severally liable for all damages assessed pursuant to this
section.
§ 766.207(7), Fla. Stat. (1997).   Chester argues the plain language of section
766.207 prohibits a setoff of the settlement award, while Dr. Doig asserts that
Florida’s setoff statutes require the settlement award be set off against the
arbitration award.3
The Fifth District concluded that the entire settlement award should be set
off against the arbitration award because there was no allocation of fault and Dr.
Doig is jointly and severally liable for all noneconomic damages found by the
arbitration panel.   See Doig, 776 So. 2d at 1047.   The Fifth District noted that the
arbitration panel determined that section 766.207(7) did not specifically permit a
3.   Florida currently has three statutes governing setoff and contribution.
See §§ 46.015, 768.31, 768.041, Fla. Stat. (2000).
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setoff for settlements and therefore the panel refused to consider Florida’s setoff
statutes.   See id.   The Fifth District found that in refusing to consider the setoff
statutes the arbitration panel ignored the intent of the Legislature to prevent double
recovery for the same damages.   Id. at 1045.   However, we agree with the
arbitration panel’s approach to the issue in this case for the reasons that follow.
In St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961, 972 (Fla. 2000), we
were faced with the issue of whether the elements of economic damages awardable
in the voluntary binding arbitration of a medical malpractice wrongful death claim
were controlled by the Medical Malpractice Act or the Wrongful Death Act.   We
concluded “that the arbitration provisions of the Medical Malpractice Act expressly
specify the elements of all of the damages available when the parties agree to
binding arbitration, regardless of whether the medical malpractice action involves a
wrongful death.”   Id. at 973.   In other words, “[i]f the Legislature intended for the
Wrongful Death Act to control the elements of damages available in a medical
malpractice arbitration, it could have specifically provided for the application of
that Act in the Medical Malpractice Act.”   Id.   We reach the same conclusion in the
instant case with respect to setoff.
Section 766.207(7)(a) provides that net economic damages be offset by any
collateral source payments, while section 766.207(7)(c) provides that damages for
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future economic losses be offset by future collateral source payments.   For
purposes of the arbitration provisions of the Medical Malpractice Act, collateral
sources are defined as follows:
(2)                                                                                       “Collateral sources” means any payments made to the claimant,
or made on his or her behalf, by or pursuant to:
(a)   The United States Social Security Act; any federal, state, or local
income disability act; or any other public programs providing medical
expenses, disability payments, or other similar benefits, except as
prohibited by federal law.
(b)   Any health, sickness, or income disability insurance; automobile
accident insurance that provides health benefits or income disability
coverage; and any other similar insurance benefits, except life
insurance benefits available to the claimant, whether purchased by him
or her or provided by others.
(c)   Any contract or agreement of any group, organization,
partnership, or corporation to provide, pay for, or reimburse the costs
of hospital, medical, dental, or other health care services.
(d)   Any contractual or voluntary wage continuation plan provided by
employers or by any other system intended to provide wages during a
period of disability.
§ 766.202(2), Fla. Stat. (1997).   The plain language of section 766.207(7)(a) and (c)
clearly provides that the only setoff available in a medical malpractice arbitration is
for collateral sources as defined by section 766.202(2).4   Because the settlement
award in this case does not meet the definition of a collateral source or a collateral
source payment, the Fifth District erred in concluding that the settlement award
4.   Section 766.207(7)(b) requires a $250,000 cap on noneconomic damages
per incident, but does not require any type of setoff from the noneconomic
damages portion of an arbitration award in a medical malpractice arbitration.
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should be set off against the arbitration award.   See Doig, 776 So. 2d at 1047.   If
the Legislature intended for Florida’s setoff statutes to control the elements of
damages available in medical malpractice arbitration, it could have specifically
provided for the application of those statutes in the Medical Malpractice Act.   See
St. Mary’s Hospital, 769 So. 2d at 973.   Because the Legislature has not done so,
we conclude the arbitration award should not be set off by the settlement award in
this case.
We also note, reading further into the statutory scheme, that section
766.208(6), Florida Statutes (1997), provides:
Arbitration to allocate responsibility among multiple defendants.-
(6)   Any defendant paying damages assessed pursuant to this
section or s. 766.207 shall have an action for contribution against any
nonarbitrating person whose negligence contributed to the injury.
Therefore, because Dr. Doig is paying damages assessed pursuant to section
766.207, he may have an action for contribution against any nonarbitrating party
whose negligence contributed to the injury.
CONCLUSION
Based on the foregoing, we conclude that a setoff is not appropriate in this
case.   We therefore answer the certified question in the negative, and quash the
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Fifth District’s decision.5
It is so ordered.
ANSTEAD, C.J., WELLS, PARIENTE, and LEWIS, JJ., and SHAW and
HARDING, Senior Justices, concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fifth District - Case No. 5D99-116
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm
Beach, Florida,
for Petitioner
Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll,
P.A., Palm Beach Gardens, Florida; and James W. Smith of Smith & Schoder,
LLP, Daytona Beach, Florida,
for Respondent
5.   We decline to address the other issues raised by the parties because they
are outside the scope of the certified question.   See, e.g., Gouty v. Schnepel, 795
So. 2d 959, 966 n.4 (Fla. 2001).   We also deny Dr. Doig’s motion to supplement
his oral argument response.
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