Can a Nurse Recover An Award to the Prevailing Party In a Malpractice Action Under a Fee-Shifting Statute ?
In Gershuny v. Martin McFall Messenger Anesthesia Professional Ass'n, 539 So. 2d 1131, 1132 (Fla. 1989), the Court relied in part on its decision in Finkelstein v. North Broward Hospital District, 484 So. 2d 1241 (Fla. 1986), which applied the principles of strict construction and the implied exclusion of one thing by the mention of another to hold that a nurse could not recover under a fee-shifting statute that authorized an award to the prevailing party in a malpractice action against any physician, podiatrist, hospital, or health maintenance organization.
Unlike the list of specific entities in the statute discussed in Finkelstein, the inclusion of "all other relevant criteria" in section 768.79(7)(b) does not imply the exclusion of a contingency fee multiplier.
Although the term "all other relevant criteria" is intentionally open-ended and nonspecific, it is not ambiguous in the sense of being susceptible to two opposing constructions. Cf. State v. Jefferson, 758 So. 2d 661, 663 (Fla. 2000) (finding ambiguity in a provision that appeared to create both a jurisdictional and procedural bar to raising unpreserved, nonfundamental errors in direct criminal appeals).
One need not resort to implication in order to construe "all other relevant criteria" to include the contingency fee multiplier.