TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION TO DISMISS ACTION AGAINST CARDIOLOGIST FOR FAILING TO COMPLY WITH PRESUIT BY NOT ATTACHING AFFIDAVIT OF A QUALIFIED “MEDICAL EXPERT”
Oken v. Williams, 34 Fla. L. Weekly D1967 (Fla. 1st DCA September 30, 2009):
Plaintiff sued a Board certified cardiologist. Attached to the Notice of Intent was a corroborating affidavit from a medical expert who was a family physician, Board certified as both a family and emergency physician. His affidavit stated he had experience in two medical specialties similar to the specialty practiced by the defendant, to the extent that those specialties included the evaluation, diagnosis or treatment of acute chest pain and impending myocardial infarction.
Under Chapter 766.102(b)(2)(b) and (c) Fla. Stat. (2003), a proper corroborating expert is a healthcare provider trained in the same specialty and certified by the Board of the same specialty. Prior to the 2003 amendment, any healthcare provider could testify as an expert. Now though, the “training, experience and knowledge” in the defendant’s specialty, no longer renders any healthcare provider competent to testify as an expert or to give a presuit corroborating affidavit. Rather, the expert must specialize in the same specialty as the defendant or specialize in a similar specialty that includes evaluation, diagnosis or treatment of the medical condition at issue. See, Section 766.102(5).
Allowing an emergency medicine physician to comment on the specialized care provided by a cardiologist violated the 2003 amendments. As such, the affidavit was not valid to corroborate, and the court granted the petition.
COURT IMPROPERLY DENIED COUNTY’S MOTION FOR SUMMARY JUDGMENT BECAUSE COUNTY WAS IMMUNE
Miami-Dade County v. Miller, 34 Fla. L. Weekly D1988 (Fla. 3rd DCA September 30, 2009):
The plaintiff sought to hold the county liable for an alleged third party attack by an unknown person at a bus stop near a Metrorail station. The plaintiff alleged that the County breached its duty by failing to provide security guards or police officers near the bus stop to prevent the attack. The trial court denied the County’s motion for summary judgment.
The Third District reversed. It found the County owed no duty to provide police officers or security guards. It reminded us that the attack took place on a public sidewalk, and not in a park or other recreational facility where courts have traditionally imposed tort liability. Nor was plaintiff in the Metrorail station or on the bus, and had not yet paid his fare. Thus, there were no special circumstances to impose a special duty on the County owed towards the plaintiff. Because the exercise of the County’s police power was a purely governmental function, it had immunity, and the trial court should have dismissed the plaintiff’s case.
TRIAL COURT SHOULD HAVE COMPLETELY DISALLOWED AWARD OF FEES WHERE SUBSEQUENT TO DEFENDANT’S REJECTION, PLAINTIFF ADDED A CLAIM FOR ADDITIONAL DAMAGES
Segundo v. Reid, 34 Fla. L. Weekly D1995 (Fla. 3rd DCA September 30, 2009):
Plaintiff served a proposal for settlement two years after his accident. At that time, his damages related solely to his neck and back injuries. The defendant rejected the offer with a counter offer, which was rejected by the plaintiff.
Six months later, the plaintiff’s attorney moved for a continuance to determine whether the plaintiff’s recent shoulder issues were related to the accident from three years prior. Subsequently, the plaintiff’s attorney sent a letter asking to settle for the $10,000 policy limits which was rejected. However, the letter did not mention the proposal for settlement rule or statute.
At trial, the plaintiff beat the original offer. The trial court then awarded attorney’s fees.
The Third District reversed. Even though the proposal for settlement was valid, it ruled the plaintiff could not collect those fees. Although it concluded that the original proposal was made in good faith based upon what the plaintiff believed his injuries and damages were, the court concluded that pursuant to Section 768.79(7)(b), the trial court abused its discretion by not completely disallowing an award of fees, finding the award was an unreasonable award under the circumstances of the case. In other words, because the original facts changed, the court found that the statute imbued the trial court with the ability to consider “all other relevant criteria” before awarding fees.
A review of the jury’s verdict, according to the court, demonstrated that if the damages awarded to the plaintiff were only for the neck and back, he would not have beat the proposal. Thus, under these unique circumstances, the trial court abused its discretion by failing to consider the reasonableness of an award of attorney’s fees and awarding fees to the plaintiff.
NOTE: Since the supreme court in Sarkis v. Allstate said there could be no multiplier in fee awards arising out of proposals for settlements, I have long believed that Section 768.79(7)(b) allows trial courts to award a fee akin to one with a multiplier. I think this case allows judges to focus on that little used section of the statute for these purposes.
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