PUBLIC RECORDS THAT RELY ON INFORMATION SUPPLIED BY OUTSIDE SOURCES OR CONTAIN EVALUATIONS OR STATEMENTS OF OPINION BY A PUBLIC OFFICIAL ARE INADMISSIBLE – DOCUMENT IS NOT ADMISSIBLE AS COUNTER-EVIDENCE SUFFICIENT TO AVOID SUMMARY JUDGMENT IF INADMISSIBLE
Arce v. The Wackenhut Corp., 35 Fla. L. Weekly D1471 (Fla. 3rd DCA July 7, 2010).
THIRD DISTRICT UPHOLDS DISMISSAL OF COMPLAINT FOR FRAUD
Sky Development v. Vista View Development, 35 Fla. L. Weekly D1478 (Fla. 3rd DCA July 7, 2010):
During the deposition of plaintiff’s manager, the plaintiff’s CFO passed him a note that read “don’t worry about pleasing him, just say no.” The note was brought to the attention of the magistrate presiding over the deposition who forbade further notes. The CFO then sent two text messages with pertinent information.
Upon discovering those, the trial judge declared a mistrial and invited defendants to move for a dismissal which they did. The motion was granted.
Because there was ample evidence for the trial court to conclude that there was an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter, this was not a case where the dismissal was unreasonably harsh. The court found there was no abuse of discretion in dismissing the case.
ERROR TO DENY DEFENDANT’S REQUEST FOR ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT, ON GROUND THAT PLAINTIFFS WERE REQUIRED TO ACKNOWLEDGE IN WRITING DEFENDANTS WERE NOT ADMITTING TO DOING ANYTHING IMPROPER
Marine v. Delmonico, 35 Fla. L. Weekly D1495 (Fla. 4th DCA July 7, 2010):
Plaintiff filed a complaint against two defendants for defamation – one defendant was the employee of the other. The complaint alleged the employee made defamatory statements, and the other defendant was vicariously responsible.
Defendant filed a proposal for settlement, and the plaintiff settled with the employee defendant (not based on the proposal though). The case went to trial against the employer, who won the trial.
In the proposal, the defendant required plaintiff to accept in writing and include an explicit acknowledgment that the defendants were not admitting that they had said or done anything wrong, and that the defendants were simply attempting to purchase their peace from the plaintiff. The trial judge found these terms ambiguous.
The Fourth District disagreed. Rather than be ambiguous, the court wrote, the defendants specifically directed the language to be contained within the written acceptance. The plaintiff also argued that the joint proposal was not made in good faith because it was made after the employee admitted to making the defamatory statement. The trial court found the proposal was made in good faith, and the Fourth agreed.
The court also refused to find the proposal void due to its joint nature. The appellate court disagreed, and found it unambiguous. It also held the plaintiff maintained the ability to independently evaluate and act upon the proposal and was not dependent upon the evaluation and acceptance of another offeree before he could make his decision.
TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF SURGICAL CENTER, BECAUSE CENTER OWED NO DUTY OF CARE TO DECEDENT WITH REGARD TO PROCEDURE PERFORMED BY A PHYSICIAN SELECTED BY THE DECEDENT – DEFENDANT HAD NO RIGHT TO CONTROL NOR DIRECT ANESTHESIOLOGIST’S TREATMENT SO IT CANNOT BE HELD LIABLE FOR THE DOCTOR’S NEGLIGENCE
Kristensen-Kepler v. Cooney, 35 Fla. L. Weekly D1510 (Fla. 4th DCA July 7, 2010):
A man went to the Northpoint Surgi-Center to have an anesthesiologist treat him for long-term back pain. The man contracted an infection and died. The PR sued Northpoint for the doctor’s negligence, alleging that under Wax, the surgi-center had a non-delegable duty to provide the patient with non-negligent anesthesiology services.
The Fourth District affirmed the summary judgment. It distinguished this case (an anesthesiologist chosen by the patient to perform treatment for back pain) from the situation where the anesthesiologist is chosen for the patient by a physician or a hospital where he is being treated. The court said that if a treating physician directs a patient to a hospital for a particular procedure, that patient has little if any control over who administers the anesthesia. However, where the patient actually chooses the anesthesiologist–as in this case–the Wax rationale does not apply.
The Fourth District also rejected that there were questions of fact as to apparent agency, because there was no evidence that Northpoint made a representation to the patient, that he relied on the representation, or that he changed his position as a result of that reliance.
TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT ON BASIS OF RELEASE, WHERE THERE WAS GENUINE ISSUE OF FACT AS TO WHETHER THE RELEASE WAS A GENERAL RELEASE OR A PROPERTY DAMAGE RELEASE (AS IT WAS TITLED)
Mckeever v. Rushing, 35 Fla. L. Weekly D1530 (Fla. 2nd DCA July 9, 2010):
Plaintiff was rear-ended in an accident and sustained property damage in the amount of $8,009.73. A month later, defendant’s insurer tendered a check in that exact amount of the repair estimate and sent the plaintiff a document entitled “Property Damage Release.”
After payment and release, plaintiff had conversations with the insurance company regarding his personal injury claim. When no settlement was reached, plaintiffs filed suit. The defendant then filed a motion for summary judgment arguing he had waived his personal injury claim, by executing the release.
The plaintiffs also filed an affidavit where plaintiff stated under oath he never intended to release his personal injury claim, and if that’s what the release was doing, he executed it by mistake. The release language stated that plaintiff read and understood the contents and signed it waiving any and all claims. The court dismissed the case based on that language.
The Second District reversed. It found the plaintiffs clearly raised both the intent of the parties and mistake as unresolved issues of fact. The letter showed evidence that the insurer was still anticipating the pending personal injury claim. Also, the plaintiff had signed an affidavit, and there was an inconsistency between the title of the document and the language therein.
SECOND DISTRICT, IRONICALLY, FINDS HOSPITAL DOES NOT OWE NON-DELEGABLE DUTY TO PROVIDE ANESTHESIA SERVICES, AND CERTIFIES CONFLICT WITH WAX
Tarpon Springs v. Reth, 35 Fla. L. Weekly D1532 (Fla. 2nd DCA July 9, 2010):
While the hospital has a statutory obligation to have an anesthesia department directed by a physician member of the hospital’s professional staff, the applicable statutes and rules do not impose a non-delegable duty to provide anesthesia services to surgical patients. Thus, the trial court erred in denying the hospital’s motion for directed verdict, and the court certified conflict with Wax to the extent that it determined a hospital does have a non-delegable duty to provide non-negligent anesthesia services to patients.
The court found that Wax erroneously interpreted §395.1055(1)(d) to apply anesthesiology standards of practice to hospitals. Chapter 395 regulates hospitals and addresses standards governing them, not standards applicable to the practice of medicine regulated by other chapters of the statutes (like Chapter 458). If a hospital fails to have an anesthesia service directed by a physician member of its medical staff, or if it allows an incompetent anesthesia provider to be granted privileges, it can be held liable if that is the proximate cause of the injury to a patient.
*Available to handle appellate and trial support matters for attorneys throughout the state.