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Pavolini v. Bird8/30/2000
Appeal from the Circuit Court for Orange County, Richard F. Conrad, Judge.
The appellants, Arturo and Stephanie Pavolini, appeal the trial court's order of dismissal of their derivative claims in the underlying medical malpractice action filed by Maria Pavolini, Arturo's wife and Stephanie's mother. The order of dismissal is based on the failure of the appellants to give separate notice pursuant to section 766.106(2), Florida Statutes (1999) of their intent to join in the action to litigate their derivative claims for loss of consortium. We reverse.
The issue in this case is whether an individual who seeks to pursue a derivative claim for loss of consortium in a medical malpractice action must either provide notice of intent to initiate litigation pursuant to section 766.106, Florida Statutes, or join in the notice provided by the injured party.
This issue was addressed by the court in Chandler v. Novak, 596 So. 2d 749 (Fla. 3d DCA 1992), wherein an injured spouse properly provided notice to the medical care provider of his intention to initiate a medical malpractice suit pursuant to section 768.57, Florida Statutes (1987), but did not include the derivative claim of his wife for loss of consortium in the notice. The court reversed summary judgment in favor of the medical care provider on the derivative claim finding that the spouse with the derivative claim was not required to provide separate notice under the statute or join in the notice provided by her injured husband. The court reasoned that a derivative action is not a separate and distinct action, but is completely dependent upon the injured spouse establishing a cause of action against the medical care provider. The court also found that the notice provided by the injured spouse was sufficient to make the defendant aware of all the facts concerning the medical malpractice claim upon which the derivative claim is dependent and that there was no showing of prejudice by the lack of a separate notice regarding the derivative claim.
The appellees in the instant case argue that the better-reasoned approach to derivative claims was adopted by the court in Orange County v. Piper, 523 So. 2d 196 (Fla. 5th DCA), rev. denied, 531 So. 2d 1354 (Fla. 1988), which involved a suit against a governmental entity based on the waiver of sovereign immunity provisions of section 768.28, Florida Statutes. In Piper, the court held that a party with a derivative claim for loss of consortium was required to give separate notice or join in the notice provided by the injured spouse pursuant to section 768.28(6), Florida Statutes, which is part of the overall statutory scheme that makes provision of waiver of sovereign immunity for liability for torts. The court in Chandler noted that its decision may conflict with the decision in Piper.
The Florida Supreme Court in Metropolitan Dade County v. Reyes, 688 So. 2d 311 (Fla. 1996), refused to find a conflict in the decisions of Chandler and Piper. In Reyes, the supreme court held that in sovereign immunity cases, strict construction of the statutory provisions of section 768.28(6) requires that a spouse with a derivative claim for loss of consortium give a separate or distinct notice of the derivative claim. Important to the resolution of the issue in the instant case, however, is the supreme court's discussion of the decision in Chandler. The supreme court quoted pertinent provisions of the decision in Chandler that discussed the reasons why a separate or distinct notice of a derivative claim in a medical malpractice claim was not required and stated:
We need not disapprove the Chandler decision because it involved a different statute. We note that the statute
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