Malpractice plaintiff entitled to attorney fees from defendant
Appellate court in Florida affirms trial court order granting attorney fees based on medical malpractice plaintiff’s proposal for settlement. After a patient was paralyzed during a procedure to stent his carotid artery, his mother was appointed as his guardian and filed suit on behalf of the patient and his minor children. Before trial, the plaintiff sent the defendant a proposal for settlement on behalf of patient and the children, specifying a separate amount for each of them. The jury found for the plaintiff and awarded enough to each claimant that the trial court granted plaintiff’s motion for attorney fees based on the proposal for settlement. The Fourth District upheld the trial court’s order. First, the Fourth District rejected the defendant’s assertion that a cover letter accompanying the proposal had been a kind of separate proposal, rendering the two documents together ambiguous. The Fourth District also disagreed with the defendant’s argument that the proposal was invalid because, as a joint proposal, it did not allow him to evaluate each claim separately and determine whether to settle one or more. The Fourth District explained that in the opposite situation, where a single defendant makes a joint proposal of settlement to several plaintiffs, the proposal is invalid because it does not allow each plaintiff to control his or her decision to settle independently. However, joint proposals from several claimants to one defendant are permissible as long as they specify the amount attributable to each claimant, so that the defendant has the information needed to evaluate his exposure if he rejects the proposal. In fact, the Court noted, it would be an injustice to require separate proposals from each plaintiff, because it would allow defendants to settle the principal claim in a suit and ignore the contingent claims, knowing that the remaining plaintiffs with smaller claims would be unlikely to continue to pursue them once the original injury claim was gone.
Duong v. Ziadie, __ So. 3d __, 2014 Fla. App. LEXIS 20450 (4th DCA 12-17-14).