Whitlock v. Cambare

COWART, Judge. The appellee doctor prevailed in a medical malpractice action in the trial court and was awarded attorney’s fees under section 768.56, Florida Statutes. The plaintiff in the medical malpractice action appealed both decisions. In a Per Curiam Affirmance without opinion, this court has upheld the judgment in favor of the doctor, Whitlock v. Cambare, Case No. 90-167 (Fla. 5th DCA Mar. 26, 1991). This case involves the legality of the award of attorney’s fees to the doctor. We affirm that award. Section 768.56, Florida Statutes, which provided for an award of attorney’s fees “to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice”, was enacted effective July 1, 1980 (Ch. 80-67, Laws of Florida), and was repealed effective October 1, 1985 (Ch. 85-175, § 43, Laws of Florida). The cause of action for medical malpractice accrues for the purposes of applying section 768.56, Florida Statutes, when the malpractice incident causing the injury and giving rise to the liability occurs. Florida Patient’s Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990). In the instant case the incident from which the injuries arose occurred on January 16, 1984. The cause of action accrued during the “window period” in which the statute was effective. Therefore, the prevailing party is entitled to attorney’s fees under the statute. See Young v. Altenhaus, 472 So.2d 1152 (Fla.1985); Winter Park Memorial Hospital Assoc., Inc. v. Jemison, 514 So.2d 1134 (Fla. 5th DCA 1987); Lower Florida Keys Hospital District v. Littlejohn, 520 So.2d 56 (Fla. 3d DCA 1988), rev. denied, 531 So.2d 1352 (Fla.1988); see also, 2 Hauser, Attorney’s Fees in Florida, Ch. 15-III-A p. 34 (1988). The order awarding the appellee doctor attorney’s fees is affirmed. AFFIRMED. W. SHARP and PETERSON, JJ., concur.