In its opinion filed on January 15, 2016, the District Court of Appeal First District, State of Florida (“First District”) held that the successful medical malpractice plaintiff’s attempt to recover her attorney fees under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442, failed to strictly comply with the section and the rule, and therefore the plaintiff could not recover her attorney fees.
The Florida medical malpractice plaintiff alleged in her Florida medical malpractice lawsuit that the defendant women’s health care center and two of its doctors were negligent in failing to remove surgical clamps during the woman’s procedure. The plaintiff’s complaint did not seek attorney fees or punitive damages from the defendant.
Plaintiff’s Proposal For Settlement
The plaintiff served a proposal for settlement on the defendant that offered to “resolve all claims the plaintiff has against [the defendant], including, but not limited to, any claims for punitive damages[.]” The plaintiff’s proposal for settlement was in the amount of $20,000 and stated it was “inclusive of costs and attorney’s fees.”
The defendant rejected the plaintiff’s proposal for settlement and the medical negligence case proceeded to a jury trial. The jury returned a verdict in the plaintiff’s favor that was at least 25% greater than the plaintiff’s settlement proposal. The plaintiff moved to recover her attorney fees under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442.
The defendant objected to the attorney fee motion on the ground that it failed to adhere to the requirements of rule 1.442 because it: (1) failed to state whether attorney’s fees were part of the legal claim, and (2) failed to state whether punitive damages were part of the claim. (Fla. R. Civ. Pro. 1.442(c)(2)(E)-(F)). While the trial judge noted the absurdity of requiring the plaintiff’s proposal for settlement to state whether attorney fees and punitive damages were part of the legal claim where the plaintiff had not sought attorney fees or punitive damages in the complaint (nor could she have), the trial judge stated that the plaintiff was required to strictly comply with the requirements of the law and therefore denied the plaintiff’s motion for her attorney fees.
The First District affirmed the trial court’s denial of the plaintiff’s motion for attorney fees, citing the requirement of strict compliance with the law, but the First District noted that the Fourth District had decided a case in 2003 to the contrary, in which the defendant had sought its attorney fees, holding that while the offer of judgment in that case did not perfectly adhere to rule 1.442, it was not ambiguous and it would make no sense to require a defendant to state in its offer of judgment that the offer does not include attorney’s fees, when plaintiff did not claim an entitlement to them and could not recover them because of failure to plead.
If you were harmed as a result of medical malpractice in Florida, you should promptly find a Florida medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
Turn to us when you don’t know where to turn.