Stalley v. Transitional Hospitals, 35 Fla. L. Weekly D1804 (Fla. 2^nd DCA August 11, 2010):

A man was admitted to the hospital around 5:00 p.m.  He was brought by ambulance although it was a non-emergency.  His wife arrived before him and met with the admissions people and signed papers before the day ended.  The man was in the hospital for over four months and ultimately died there, allegedly due to negligence.

Plaintiff asserted that the arbitration agreement the wife signed was unenforceable.  There was no dispute that the man did not sign the agreement himself and no dispute that his wife did not have power of attorney or written consent authorizing her to act on his behalf.  The only evidence was the wife’s testimony that she had her husband’s authority to sign papers regarding his admission.  However, the arbitration agreement was optional, and not necessary for the man to receive care. 

While the hospital asserted that the man never asked his wife about the documents she signed for him, or asked to review them, there was no evidence that he knew the wife signed an arbitration agreement.  For those same reasons, there could be no evidence that the man ratified the arbitration agreement.  

Because there was insufficient evidence to establish that the wife was acting as the husband’ s agent when she signed the arbitration agreement, or that he was the intended third-party beneficiary of that agreement, the trial court erred in finding arbitration enforceable.

VENUE WAS PROPER IN PALM BEACH COUNTY WHERE SERVICE WAS EFFECTED ON REGISTERED AGENT OF FOREIGN CORPORATION AT PALM BEACH COUNTY ADDRESS–REGISTERED AGENT’S AUTHORITY NOT REVOKED BECAUSE DEFENDANT FOREIGN CORPORATION HAD WITHDRAWN FROM DOING BUSINESS IN FLORIDA; NO EVIDENCE THAT A CERTIFICATE OF WITHDRAWAL HAD BEEN ISSUED

Vrchota Corp. v. Kelly, 35 Fla. L. Weekly D1834 (Fla. 4^th DCA August 11, 2010):

Plaintiff sued Vrchota Corp. for wrongful death.  The accident happened in Collier County, but plaintiff sued in Palm Beach County pursuant to §47.051 which governs venue against foreign corporations.  The corporation had a registered agent in PBC.

The defendant submitted an affidavit challenging the choice of venue in Palm Beach County, alleging that it no longer had an agent in the county at the time service was made. 

The statute requires written intent to revoke a registered agent’s authority as part of an application for certificate of withdrawal, and is not effective until the certificate of withdrawal is issued by the Department of State.  Until that happens, the foreign corporation remains subject to process through its registered agent, and venue may properly lie in the county where the corporation has its registered agent.  Therefore, the Fourth District affirmed the trial court’s decision to deny the motion to dismiss or transfer venue. 

2008 AMENDMENT TO PIP STATUTE WHICH LIMITS AMOUNT INSURERS REIMBURSE PROVIDERS FOR NON-EMERGENCY NON-HOSPITAL SERVICES DOES NOT APPLY RETROACTIVELY TO POLICIES IN EFFECT THAT EXPIRE BEFORE THE STATUTE’S EFFECTIVE DATE OF JANUARY 1, 2008

Geico v. Physician’s Group, 35 Fla. L. Weekly D1850 (Fla. 2^nd DCA August 13, 2010).

EXPERT TESTIMONY NOT SUBJECT TO FRYE WHERE THERE IS NO DISPUTE THAT POST-MORTEM REDISTRIBUTION WITH FENTANYL IS GENERALLY ACCEPTED BECAUSE THE METHODOLOGY FOR DETERMINING HOW THE POST-MORTEM REDISTRIBUTION RATIO IS CALCULATED IS GENERALLY ACCEPTED–AS LONG AS THE UNDERLYING THEORY OR METHODOLOGY AND PRINCIPLES ARE ACCEPTED, THE EXPERT’S OPINION ITSELF NEED NOT BE ACCEPTED–DEFENDANT ENTITLED TO SETOFF IN SETTLEMENT WITH ANOTHER DEFENDANT IN ACCORDANCE WITH RATIO OF ECONOMIC DAMAGES

Janssen Pharmaceuticals v. Hodgemire, 35 Fla. L. Weekly D1855 (Fla. 4^th DCA August 13, 2010):

A woman died from fentanyl toxicity after she was prescribed a patch after spinal fusion surgery. 

The primary issue was whether the decedent’s post-mortem fentanyl blood level could have been caused by properly working Duragesic patches.  The jury heard sharply conflicting testimony about whether a properly working patch could explain her post-mortem fentanyl blood level.

Post-mortem redistribution is a process by which drugs stored in the body’s tissues are released back into the blood stream upon death.  The appellee’s experts relied on two sources for this opinion.  The appellants challenged the testimony on the basis that it did not meet the Frye standard.  The issue was reviewed de novo.

The court first noted that a party may preserve a Frye challenge by making a specific objection at trial.  A general objection under §90.702 is insufficient.  The objection must challenge the expert’s testimony on the basis that “novel scientific evidence is unreliable.”

A party may also raise a Frye challenge pretrial which is the better procedure because it minimizes inconvenience to the jury.  If raised pretrial, courts have recognized that an evidentiary hearing should be held. 

In this case, the defendant moved in limine to exclude any expert who would calculate an antemortem blood fentanyl level from post-mortem blood level, because it did not pass muster under Frye. 

The court found that plaintiffs’ experts did not engage in reverse extrapolation.  They simply compared the woman’s measured post-mortem fentanyl level with her ante-mortem fentanyl level.  In rendering the opinion, the experts first used the information in the Duragesic package insert that was published to calculate the maximum level of fentanyl, and then testified how much they expected post-mortem redistribution would increase the amount of fentanyl in the blood after death. 

The court reminded us that Frye does not require an expert’s opinion to be generally accepted.  In this case, the parties conceded that the theory underlying the post-mortem redistribution was generally accepted.  Because none of the signs underlying the post-mortem redistribution were being challenged, the plaintiff’s expert’s opinions concerning the amount of redistribution did not need to be generally accepted as well.

While not fully discussed, there was a setoff of economic damages in accordance with the ratio of total damages established by the jury which the plaintiff conceded during oral argument.

*Available to handle appellate and trial support matters for attorneys throughout the state.

Vidal v. Suntrust, 35 Fla. L. Weekly D1724 (Fla. 4^th DCA August 4, 2010).

LANDOWNERS ARE NOT LIABLE TO PERSONS OUTSIDE THE LAND FOR A NUISANCE RESULTING FROM TREES AND NATURAL VEGETATIONS GROWING ON THE LAND–HOWEVER, THE ADJOINING LANDOWNER MAY TRIM THE VEGETATION AT HIS OR HER OWN EXPENSE WITHOUT LIABILITY

Scott v. McCarty, 35 Fla. L. Weekly D1726 (Fla. 4^th DCA August 4, 2010).

COURT UPHOLDS DIRECTED VERDICT FOR CITY IN ACTION BY A PLAINTIFF HIT BY A STRAY BULLET DURING A FAMILY-FRIENDLY NEW YEAR’S EVE EVENT

Leitch v. City of Delray, 35 Fla. L. Weekly D1726 (Fla. 4^th DCA August 4, 2010):

A woman was hit by a stray bullet at midnight on New Year’s Eve in downtown Delray Beach while she was at an outdoor section of a restaurant during “First Night Delray Beach 2006,” a family-friendly event organized and run by the city.  The bullet was most likely fired into the air by a reveler from outside the event.  Plaintiff sued Delray for its negligence in failing to warn her about stray bullets.  After a favorable jury verdict, the trial court granted Delray’s motion for directed verdict on the issue of duty. 

The Fourth District affirmed.  It found that the defendant’s conduct did not foreseeably create a broader zone of risk that posed a general threat of harm.  Although there was testimony that in 1998 and 2003 stray bullets had struck individuals in downtown Delray on New Year’s Eve, the court held that those prior accidental shootings were too remote in time and too infrequent to render the instant event reasonably foreseeable. 

VERDICT NOT AGAINST MANIFEST WEIGHT OF THE EVIDENCE

Abbott v. Dorleans, 35 Fla. L. Weekly D1727 (Fla. August 4, 2010):

A woman and her daughter were driving on a dark evening, when the woman struck a tow truck that was responding to a scene of an accident and was in the process of removing a vehicle.  A deputy was on the scene, and his police car was parked off the road completely in the median with its lights flashing.

Plaintiff sued the tow truck driver and towing company.  There was conflicting evidence about whether road flares had been set up, and about the speed the plaintiff was driving prior to striking the tow truck. 

The jury found plaintiff 10% at fault, the tow truck driver 35% at fault, and the deputy 55% at fault.  It awarded almost $1.5 million dollars in damages. 

On appeal, defendants tried to raise that there was no legal duty owed by the tow truck company and driver.  However, the court observed that they failed to raise the issue either on a motion to dismiss, motion for summary judgment or motion for directed verdict, and therefore waived the issue on appeal. 

The court also noted that while it may not have agreed with the jury’s verdict, there was a reasonable conclusion to be drawn from the evidence which could properly support the denial of a directed verdict.  The damages were also not so excessive as to shock the judicial conscience. 

The court also noted that plaintiff argued on cross appeal that it was error to include the deputy on the verdict form as a Fabre defendant, claiming surprise.  In dicta, the court observed that if it were to agree with plaintiff, it would conclude that the proper remedy would be a new trial (now–like we always like to argue–a simple calculation to add the percentage of negligence to the defendant).  Plaintiff’s counsel had represented during oral argument that if the rest of the final judgment were affirmed, it would withdraw the cross appeal.

ABUSE OF DISCRETION TO DENY DEFENDANT’S MOTION FOR NEW TRIAL AND FOR REMITTUR WHERE THERE WAS NO COMPETENT AND SUBSTANTIAL EVIDENCE THAT PLAINTIFF WAS REASONABLY CERTAIN TO NEED FUTURE MEDICAL TREATMENT – ERROR TO FAIL TO APPLY SETOFF FOR PIP BENEFITS TO AWARD OF PAST DAMAGES

Montesinos v. Zapata, 35 Fla. L. Weekly D1736 (Fla. 3^rd DCA August 4, 2010):

While there was evidence in the record to support that plaintiff suffered a permanent injury, a $93,000 award for future medical expenses was not supported by the competent and substantial evidence according to the court.  Plaintiff attempted to justify the award by arguing that it was a multiple of the $14,000 the jury awarded for past medical expenses.  However, the record lacked testimony regarding a probable need for any medical treatment in the future.  The doctor had actually testified that plaintiff reported his preoperative pain was better after the surgery.  As a result, the court did not find evidence to support this future verdict. 

There also should have been a setoff for the PIP benefits from past damages. 

NEW TRIAL REQUIRED BASED ON PLAINTIFF’S IMPROPER APPEAL TO PASSION AND SYMPATHY IN OPENING, AND PREJUDICIAL CLOSING ARGUMENT

Chin v. Caiaffa, 35 Fla. L. Weekly D1742 (Fla. 3^rd DCA August 4, 2010):

This case provides lots of good guidance as to what is not acceptable during the course of opening and closing argument.

Plaintiff’s counsel said in opening that defendant caused the accident, and left the plaintiff in “debt” over his medical expenses.  In closing, counsel said it’s difficult to comprehend because “we” can’t feel his pain, we can only “guess and imagine.”  We accept other people’s pain because that’s how we have to live.  Counsel said that the defendant “wrote a blank check” when he acted negligently. 

Counsel then described how instead of taking responsibility for what defendant did wrong, and for everything that’s happened to the plaintiff, they added insult to injury.  Said defendant was not sorry that this happened.  He also impermissibly compared plaintiff’s injuries to having a beautiful magnificent Picasso painting worth $10 million dollars, and getting it ripped or shredded in an accident.

The court found that these comments and many other inflamed the jury in the trial of this meritorious case, and reversed for a new trial.

NO VIDEOTAPE OF COMPULSORY MEDICAL EXAM

Deal v. Ecklund, 35 Fla. L. Weekly D1772 (Fla. 5^th DCA August 6, 2010):

Court granted petition for writ of certiorari and quashed the portion of the order that permitted the defendants to videotape the plaintiff’s compulsory medical exam.

TRIAL COURT ABUSED DISCRETION IN DENYING MOTION FOR REMITTITUR OF FUTURE MEDICAL EXPENSES–NO ABUSE OF DISCRETION IN PERMITTING PLAINTIFF TO REOPEN CASE AND PRESENT ADDITIONAL EVIDENCE CONCERNING FUTURE MEDICAL EXPENSES

Aills v. Boemi, 35 Fla. L. Weekly D1778 (Fla. 2^nd DCA August 6, 2010):

Plaintiff sued her physician for medical negligence after he performed cosmetic procedures on her breasts.  After the surgery to remove breast tissue and insert implants, some of the breast tissue became necrotic and died, resulting in significant tissue loss and the loss of both areolae and nipples.  Plaintiff underwent a number of painful procedures to remove the dead tissue and to graft healthy tissue onto her breasts.  She incurred significant scarring and is unable to nurse any children she might have in the future (she was 28 at the time). 

While the trial court did not abuse its discretion in allowing the plaintiff to reopen her case to introduce evidence of the actual cost of the 13 future surgeries testified to in her case in chief, the evidence only supported an award of $75,000.  Thus, the award of $150,000 for future medical expenses was not supported by the evidence and required a remittitur or a new trial. 

In closing argument, plaintiff’s counsel suggested the jury return a verdict for past and future non-economic damages in the range of $12 to $13 million.  Defense counsel said the injuries did not warrant that high of a recovery, but did not give an amount.  The jury awarded $8 million dollars.

In his post-trial motion for remittitur, the doctor suggested that an award of four to five times of her actual medical expenses would have been appropriate somewhere between $624,000 and $780,000.

The court then remitted the total non-economic damages from $8 million to $2.5 million.  Though this was a significant reduction, the court said it was a significant amount over the award too.

The court then addressed similar cases from all over the country, where all of the verdicts were far less than the $8 million dollars.  In fact, the highest verdict was $3.5 million in a case involving more substantial injuries.  The court ruled that plaintiff failed to make a clear showing that the trial court abused its discretion in ordering a reduction of the past and future non-economic damage award to $2.5 million dollars. 

The court reversed the trial court’s order to the extent that it denied the motion for remittitur for future medical expenses and affirmed it as to the non-economic damage award.  If the plaintiff does not accept the remittitur, the trial court will order a new trial. 

This case seems to allow the trial court to act as a “seventh juror.”  I think it is a decision which could potentially lead to a lot less deference to jury verdicts and a lot more “granted” remittiturs.

*Available to handle appellate and trial support matters for attorneys throughout the state.

Target Corp. v. Hutchings, 35 Fla. L. Weekly D1686 (Fla. 4^th DCA July 28, 2010):

Target’s counsel argued that the plaintiff should be deposed before she could see the video and the photographs of her fall.  He contended the plaintiff was not accurately portraying the incident, citing medical records where the plaintiff told her doctor something which was refuted by the video.  Plaintiff asserted she should be allowed to refresh her memory with the security video and accident scene photos before her deposition.  The trial court granted the motions to compel, requiring production of the videos and the photos. 

The court distinguished Dodson v. Persell, which involved surveillance films made after the accident.  Those films do fall under work product privilege, and they are not discoverable unless intended for use at trial.

This video was not protected work product which was prepared to aid counsel in trying the case.  Rather, it was a video of the accident itself which was discoverable under the Rules of Civil Procedure, to prevent the use of surprise, trickery and legal gymnastics. 

Even if the photographs were characterized as work product, the circuit court has broad discretion to oversee discovery, and there was no abuse of discretion in requiring the production of this evidence before the deposition.

ABUSE OF DISCRETION TO DENY DEFENDANT’S MOTION TO AMEND ANSWER WHERE DEFENDANTS HAD NOT ABUSED PRIVILEGE TO AMEND, AND THERE WAS NO SHOWING ADMENTMENT WOULD BE FUTILE OR PLAINTIFF WOULD SUFFER PREJUDICE – DENIAL OF MOTION TO AMEND WOULD PRECLUDE CASE FROM BEING RESOLVED BY MERITS

Crown v. Chase Home Finance, 35 Fla. L. Weekly D1703 (Fla. 5^th DCA July 30, 2010):

After being served with the initial complaint, the defendants filed a pro se, bare bones answer.  The next record activity occurred seven months later when plaintiff served its motion for summary judgment.  One week later, the defendant’s newly retained counsel served a motion to amend which was attached to the motion.  Plaintiff’s previously filed motion for summary judgment did not address several of the affirmative defenses raised in the proposed answer.  On the 21^st day, after service of the motion for summary judgment, the trial court held a hearing and denied defendant’s motion to amend, in turn granting plaintiff’s motion for summary judgment.

An order on a motion to amend is reviewed under abuse of discretion.  All doubts should be resolved in favor of allowing the amendment, and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile.  Public policy favors the liberal granting of leave to amend where the failure would likely prevent the cause from being resolved on the merits. 

Because the defendants had not abused the privilege to amend, and there was no showing that the amendment would be futile or that plaintiff would suffer prejudice, denial of the motion precluded the case from being resolved on the merits.

*Available to handle appellate and trial support matters for attorneys throughout the state.

Jackson v. Anthony, 35 Fla. L. Weekly D1655 (Fla. 1^st DCA July 23, 2010):

A motion for rehearing does not toll the 30 day time limit set forth in Rule 1.525.  Similarly, a post-trial motion to admit and consider newly discovered evidence does not toll the 30 day limit either.

*Available to handle appellate and trial support matters for attorneys throughout the state.

State Farm v. Kramer, 35 Fla. L. Weekly D1558 (Fla. 4^th DCA July 14, 2010):

In a breach of contract case, the insurer objected to the production of his claims file citing general objections.  It wasn’t until the trial judge denied the insurer’s motion for protective order, that the insurer responded to the discovery with privilege objections.  The circuit court denied the motion for reconsideration, and said the time for objection had run.

The Fourth District granted the petition.  It found the work product and attorney-client privilege objections could not be deemed waived under these circumstances.  The court ordered the circuit court to evaluate the privilege objections and conduct an in-camera inspection if necessary.

SURGEON WHO WAS PRIVATE PHYSICIAN WITH STAFF PRIVILEGES, HAD NO CONTRACT WITH HOSPITAL, AND WAS NOT HOSPITAL BASED, WAS NOT APPARENT AGENT OF HOSPITAL

Quesada v. Mercy Hospital, 35 Fla. L. Weekly D1565 (Fla. 3^rd DCA July 14, 2010):

The hospital established that the surgeon was a private physician with staff privileges who had no contract with the hospital, and was not hospital-based.  Plaintiff’s affidavit said he did not attempt to secure a specialist of his own to perform the operation, but accepted the person the hospital provided.  He thought the surgeon was a hospital employee. 

The hospital’s consent form for a doctor to perform a procedure within the hospital without more is not a representation that the doctor is an agent of the hospital.  The consent form simply identified the operative procedure to be performed and the doctor performing it as part of the patient’s authorization to the hospital.

Without any other evidence that the hospital made a representation to the plaintiff, or that he found anything other than a subjective impression that the surgeon was a hospital employee, summary judgment for the hospital on the issue was proper. 

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT WHERE PLAINTIFF COULD NOT PROVE THAT HER DAUGHTERS HEARD DEFENDANT’S STATEMENT THAT SHE HAD AIDS

D.E.W. v. Krouse, 35 Fla. L. Weekly D1567 (Fla. 4^th DCA July 14, 2010):

Plaintiff sued for malpractice based on a breach of confidentiality.  The plaintiff, who is HIV positive, was admitted to the hospital for treatment of a kidney infection.  Her own mother brought her two minor daughters, who were unaware of her condition.  While the family members were in the room, the physician entered and asked if the woman was taking her medication for AIDS.

Plaintiff filed a complaint against the doctor alleging medical malpractice based on this improper disclosure and seeking damages for mental anguish and emotional distress.  Plaintiff filed a motion for protective order to prevent her daughters from being deposed, explaining that they did not know she was in fact HIV positive.  The defendant then sought summary judgment arguing she could not demonstrate causation or damages because she could not prove that her daughters heard the statements and that they did not think their mother was HIV positive. 

The court said it did not have to address whether the facts of this case met one of the exceptions to the impact rule, because the record was devoid of any evidence that the plaintiff’s daughters heard what the doctor said.  As such, summary judgment was properly entered for the defendant.

DEFENDANT’S PARTICIPATION IN PRESUIT FOR MEDICAL MALPRACTICE ACTIONS DOES NOT CONSTITUTE WAIVER OF ARBITRATION PREVIOUSLY AGREED TO BY THE PARTIES

Gordon v. Shield, 35 Fla. L. Weekly D1570 (Fla. 4^th DCA July 14, 2010):

Drawing an analogy between the mandatory presuit process in medical malpractice cases, and EEOC cases, the court reminded us that in other jurisdictions defendants do not waive arbitration by participating in (for example) EEOC proceedings.  This is because the EEOC investigation might resolve the claim without a need for arbitration.

Similarly, participating in the presuit process under Chapter 766 may also resolve the claim without the need for arbitration, and thus participation therein, does not waive the right to arbitrate.

AN INDIVIDUAL ARCHITECT WHO WORKS FOR A CORPORATION MAY BE HELD INDIVIDUALLY LIABLE FOR PROFESSIONAL NEGLIGENCE

Trikon Sunrise Associates v. Brice Building Co., 35 Fla. L. Weekly D1572 (Fla. 4^th DCA July 14, 2010).

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN FINDING THAT PERI-OPERATIVE NURSE WAS QUALIFIED TO OPINE AS MEDICAL EXPERT ON ISSUE FOCUSING UPON HOSPITAL’S NURSING STAFF’S DESCRIBED LAPSES IN CARE, TREATMENT AND COMMUNICATION, THAT WERE THE CRUX OF THE PLAINTIFF’S COMPLAINT

Baptist Medical Center of the Beaches, Inc. v. Rhodin, 35 Fla. L. Weekly D1583 (Fla. 1^st DCA July 16, 2010):

Plaintiff was hospitalized, and filed a complaint alleging that the nursing care caused him injury.  As part of presuit, plaintiff retained a registered nurse with a Ph.D. as an expert.  She opined that the nursing staff deviated from the acceptable standard of care.  The hospital moved to dismiss the complaint based on plaintiff’s failure to satisfy the requirements under Chapter 766. 

According to the nurse’s CV, she had a B.S., M.S., and Ph.D. in nursing and had been an associate professor of nursing at an accredited health professional school since 2003, as well as a program coordinator for nursing education programs.  She had been a registered nurse with a license to practice in Georgia with over 25 years of experience. 

If a healthcare provider against whom testimony if offered is a healthcare provider other than a specialist or a general practitioner, the statute (§766.102(5)(c)) requires the expert to have devoted professional time during the three years immediately preceding the date of the occurrence that is the basis of the action, to one or more of the three types of activities enumerated in the subsections. 

Because Dr. Byrne’s CV indicated her considerable nursing training and experience, she was qualified to opine as a medical expert on the issues of standard of care and medical causation regarding the nursing care. 

Additionally, simply because an expert’s opinion is deemed “insufficient” to support breach of the standard of care does not mean that the expert was “disqualified” as an expert.  Because Byrne’s affidavit did not violate the disclosure requirement (requiring disclosure of disqualified opinions), the court did not opine as to whether defendant violated that. 

AN AWARD OF FEES AND COSTS TO A PREVAILING PARTY MUST BE REVERSED WHERE THE UNDERLYING JUDGMENT IS REVERSED ON APPEAL

Vose v. Gulfside, 35 Fla. L. Weekly D1590 (Fla. 2^nd DCA July 16, 2010).

WHERE TRIAL COURT DISMISSED PREMISES LIABILITY ACTION WITH PREJUDICE PURSUANT TO STIPULATION FOR DISMISSAL WITHOUT RESERVING JURISDICTION BEFORE PLAINTIFF’S ATTORNEY ASSERTED CHARGING LIEN, THE COURT LACKED JURISDICTION TO AWARD FEES

Naftzger v. Elam, 35 Fla. L. Weekly D1600 (Fla. 2^nd DCA July 16, 2010):

If you find yourself getting discharged, be sure to file your charging lien before the case resolves!

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN PROHIBITING DEFENDANT HOSPITAL FROM HAVING EX PARTE COMMUNICATIONS WITH EMPLOYEE PHYSICIANS PROVIDING POST-INCIDENT FOLLOW-UP TREATMENT TO PLAINTIFF – THE PRIIVILEGE DOES NOT APPLY TO HOSPITAL’S COMMUNICATIONS WITH ITS EMPLOYEE PHYSICIANS BECAUSE SUCH COMMUNICATIONS ARE NOT “DISCLOSURES” THAT TRIGGER THE PRIVILEGE

Lee Memorial Health System v. Smith, 35 Fla. L. Weekly D1601 (Fla. 2^nd DCA July 16, 2010):

The hospital sought review of the order granting the plaintiff’s motion for protective order and prohibiting the hospital from having certain ex parte communications with its employee physicians.  The court concluded that the privilege did not apply to the hospital’s communications with its employee physicians, because such communications were not “disclosures” to trigger the privilege under §456.057(8). 

While the purpose of the statute is to protect the plaintiff’s right to confidentiality of his or her medical treatment, there is a competing interest that employers be permitted to discuss a pending lawsuit with their employees.  In reconciling those competing interests, §456.057(8) does not apply to communications between a hospital and its employee physicians because “no disclosure” occurs when a hospital and its employees discuss information obtained in the course of employment.  However, physicians may not discuss confidential patient information with all hospital employees.  Just those involved in the treatment that formed the basis of the underlying lawsuit.  The fact that the information relates to the plaintiff’s post-incident treatment does not alter the conclusion that communications between the hospital and its employee physicians are not disclosures under the statute. 

CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY DENYING MOTION TO COMPEL AMENDMENT 7 DOCUMENTS BASED ON ARGUMENT THAT INCIDENT DID NOT INVOLVE NEGLIGENCE, AND WAS THEREFORE NOT AN “ADVERSE MEDICAL INCIDENT”

Baldwin v. Shands Teaching Hospital, 35 Fla. L. Weekly D1605 (Fla. 1^st DCA July 20, 2010):

The court helpfully noted that the definition of adverse medical incident is not restricted to acts of negligence alone.  Amendment 7 expressly includes “medical negligence, intentional misconduct, and any other act, neglect, or default of a healthcare facility or healthcare provider that caused or could have caused injury to…a patient.” 

Since the plaintiffs made a showing that the acts of the healthcare facility or provider caused or could have caused injury or death to the patient, they demonstrated that the incident was disclosable under Amendment 7.

*Available to handle appellate and trial support matters for attorneys throughout the state.

Arce v. The Wackenhut Corp., 35 Fla. L. Weekly D1471 (Fla. 3^rd DCA July 7, 2010).

THIRD DISTRICT UPHOLDS DISMISSAL OF COMPLAINT FOR FRAUD

Sky Development v. Vista View Development, 35 Fla. L. Weekly D1478 (Fla. 3^rd 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. 4^th 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. 4^th 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. 2^nd 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. 2^nd 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.

In Re: Amendments to Rule Regulating Florida Bar 4-7.1, 35 Fla. L. Weekly S435 (Fla. July 8, 2010):

The court adopted an amendment to the Rules Regulating the Florida Bar 4-7.1(e) which says that Subchapter 4-7 on advertising does not apply to communications between lawyers.  4-7.1(g) exempts communications with current and former clients from the section. 

PETITIONER IS ENTITLED TO WRIT OF PROHIBITION WHERE ALLEGED COMMENTS OF TRIAL JUDGE COULD REASONABLY HAVE CAUSED HER TO FEAR THAT SHE WOULD NOT RECEIVE A FAIR TRIAL

Haas v. Davis, 35 Fla. L. Weekly D1455 (Fla. 3^rd DCA June 30, 2010):

When the comments made by the trial judge may not have been intended to reflect on his beliefs as to the merits of the underlying claims, the applicable standard looks to the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.  The comments could reasonably have caused her to fear that she would not receive a fair trial and therefore the writ should have been granted. 

CITIZENS PROPERTY INSURANCE CORP. IS IMMUNE FROM FIRST-PARTY BAD FAITH CLAIMS

Citizens v. La Mer, 35 Fla. L. Weekly D1468 (Fla. 5^th DCA July 2, 2010):

Citizens sought a writ of prohibition directed to the trial court to prevent the court from taking any further action with respect to a first-party bad faith claim brought by the respondent, La Mer Condominium Association.  The court held that Citizens is immune from first-party bad faith claims pursuant to §627.351(7)(r)1 and §624.155(1)(b)1. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

Pruitt v. Perez-Gervert, 35 Fla. L. Weekly D1401 (Fla. 2^nd DCA June 23, 2010):

The plaintiff received injuries to his neck and back in an automobile accident.  His treating physician testified he had suffered a permanent injury and performed surgery as a result of the accident.  The evidence presented regarding his future medical expenses amounted to $88,960.00. 

The jury awarded over $163,000.00.  Because the amount was clearly excessive in light of the medical expenses reasonably supported by the evidence at trial, it was error for the trial judge not to grant defendant’s remittitur. 

Also, as to the loss of future earning capacity, the only evidence introduced was that the plaintiff was a 57 year-old drywall installer who had earned $16.00 per hour before the accident.  He testified he could no longer hang drywall after the accident.  However, his doctors did not testify that he was completely disabled from employment.  The jury awarded the plaintiff $580,000.00 for future lost earning capacity.

The court found that although the plaintiff presented evidence of past wages as a drywall installer, and evidence that he could no longer work, he did not present evidence of his post-accident earning capacity, or evidence that he was completely disabled from further employment.  In fact, his counsel argued during closing argument that he could probably earn at least minimum wage until his retirement at 65 or 70.

The court reversed, and entered a directed verdict on the future lost earning capacity.  It then remanded for a new trial on the future medical expenses.

ERROR TO DISMISS ACTION BECAUSE MOTION FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE FOR PLAINTIFF WHO DIED DURING COURSE OF LITIGATION WAS UNTIMELY, WITHOUT CONSIDERING EVIDENCE ESTABLISHING EXCUSABLE NEGLECT

Mims v. American Senior Living of Dade City, 35 Fla. L. Weekly D1404 (Fla. 2^nd DCA June 23, 2010):

The plaintiff died during the litigation, and counsel did not file a motion for substitution of the personal representative until 115 days after the filing of the suggestion of death.  Plaintiff’s counsel presented evidence to the trial court that demonstrated excusable neglect for the untimely finding (based on a clerical error in counsel’s office).  The trial court refused to consider the excusable neglect evidence and dismissed the case with prejudice. 

The court reminded us that Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the 90 day period set forth in the rule.  Furthermore, the courts of Florida have a longstanding tradition in favor of disposing of actions on their merits. 

ERROR TO GRANT MOTION TO DISMISS ON GROUND THAT PLAINTIFF’S AFFIDAVIT FAILED TO MEET THE “SIMILAR SPECIALITY” REQUIREMENT OF CHAPTER 766–ON REMAND, COURT SHALL CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER AN AFFIDAVIT FROM AN EMERGENCY DEPARTMENT PHYSICIAN COMPLIED WITH “SIMILAR SPECIALITY” REQUIREMENT

Holden v. Bober, 35 Fla. L. Weekly D1405 (Fla. 2^nd DCA June 23, 2010):

A man who suffered an acute ischemic stroke sued a hospital emergency department.  In support of his notice of intent, he attached a corroborating affidavit of a Board certified ER physician.  Co-defendants, Dr. Gu and the Malka Institute, alleged that the plaintiff’s expert affidavit was facially insufficient with respect to the neurology claims, because their expert was an ER physician and not a neurologist.  The trial court dismissed the plaintiff’s complaint.

The appellate court observed it had to look at the dismissal in a light most favorable to the plaintiff.  Because this physician–though a neurologist–was in an emergency department setting, the court found it could envision a scenario where an ER physician could be considered an expert specializing in a “similar specialty.”  The court further noted an evidentiary hearing would provide the plaintiff with the opportunity to introduce witnesses and explain how the ER doctor’s qualifications could be considered a similar specialty of Dr. Gu and clarify any inconsistencies in the corroborating affidavit.

The court found it was error to dismiss plaintiff’s complaint as to those defendants, without determining in a light most favorable to the plaintiff, whether his affidavit complied with the requirements of Chapter 766.  Upon remand, the court ordered an evidentiary hearing to see if the physician could meet the “similar specialty” requirement. 

NO ABUSE OF DISCRETION IN PRECLUDING PLAINTIFF FROM CROSS EXAMINING DEFENSE EXPERT REGARDING CREDIBILITY OF ANOTHER WITNESS–TRIAL COURT PROPERLY FOUND ISSUE WAS COLLATERAL AND HAD NO BEARING ON WHETHER A DEFENDANT WAS NEGLIGENT–EVEN IF ERROR, IT WAS HARMLESS

Special v. Baux, 35 Fla. L. Weekly D1419 (Fla. 4^th DCA June 23, 2010):

After a woman underwent a routine cesarean section for her breach birth, she suffered two cardiac arrests and died within five hours of delivery.  Plaintiff sued the defendants for negligently administering anesthesia and for negligent monitoring.  The defendant alleged that the death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood mixing with amniotic fluid sometimes causing heart and lung collapse.

The AFE diagnosis figured prominently at trial.  There was evidence that Boca Hospital had a disproportionate number of AFE cases.  During the cross of defendants’ expert regarding AFE, the defendants objected when plaintiff began to ask the expert to address another expert’s testimony regarding the appearance of between 1 and 2 cases of AFE annually at West Boca (even though ranges from 1 in 8,000 to 1 in 80,000).  The trial court sustained the objection, finding it was impeachment on a collateral issue. 

The court explained that a general claim of the “over-diagnosis” of AFE at the Center, did not affect whether the doctor was negligent in attending to the decedent.  The court found such “over-diagnoses” was an immaterial fact.  It then found that even if the issue were not collateral, the plaintiff argued prominently both in the center’s interrogatory answers and in closing argument that there was an epidemic in “over diagnosing” AFE.

The court then using the civil standard for harmless error (whether a different result would have been reached but for the error), and found the error was harmless.

NO CLEARLY ESTABLISHED LAW PROHIBITING APPLICATION OF A MULTIPLIER TO PARALEGAL FEES THAT ARE INCLUDED AS PART OF AN ATTORNEY’S FEE AWARD

State Farm v. Wise, 35 Fla. L. Weekly D1438 (Fla. 1^st DCA June 25, 2010).

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In Re: Amendment to the Florida Rules of Appellate Procedure, 35 Fla. L. Weekly S367 (Fla. June 24, 2010):

The supreme court approved a new rule, 9.410(b), which provides for motions made under §57.105, and implements the safe-harbor provisions of that statute.

WORKERS COMPENSATION RETALIATION CLAIMS BROUGHT AGAINST THE STATE UNDER §440.205, ARE NOT SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS OF §768.28

Bifulco v. Patient Business & Financial Services, 35 Fla. L. Weekly S368 (Fla. June 24, 2010):

The supreme court said that §768.28 waives sovereign immunity specifically for common law torts.  Other than that though, the statute must explicitly note its applicability for statutory causes of action.  Because there is no mention of this statutory cause of action in the statute, the rules regarding presuit did not apply.

FOURTH DISTRICT REVERSES PRODUCT LIABILITY VERDICT BASED ON TRIAL COURT’S REFUSAL TO ALLOW DEFENDANT TO INTRODUCE DEMONSTRATIVE AIDS WHICH JUDGE FOUND WERE MORE PREJUDICIAL THAN PROBATIVE; FOURTH FURTHER FOUND PURPORTED ERROR NOT HARMLESS

Mitsubishi Motors Corp. v. Laliberte, 35 Fla. L. Weekly D1327 (Fla. 4^th DCA June 16, 2010):

The majority found that Judge Maass erred in refusing to allow Mitsubishi to introduce some demonstrative aids in conjunction with its experts’ opinions.  Both parties agreed that the experts’ opinions themselves had come into evidence fully.  However, the majority ruled that without the demonstrative aids, the opinions were “barren and unsubstantiated,” and lacked “force and color.”

The dissent emphatically disagreed.  Judge Ciklin explained that Judge Maass weighed the proffered demonstrative evidence, and determined that based upon some of it being too similar and some of it being too dissimilar, that it was unfairly prejudicial and should not come in.  Judge Ciklin pointed out how many of Mitsubishi’s demonstrations–both substantive and otherwise–did get into evidence.

The majority then found that the error was not harmless, applying the criminal standard.  Ironically, a week later, in the decision of Special v. Baux, the Fourth applied the civil standard for harmless error, which is different (and requires a showing that the outcome of the trial would have been different but for the error).

Hopefully, the motion for rehearing and rehearing en banc filed will correct this intra-district conflict, and get this opinion reversed. 

TRIAL COURT ERRED IN SUA SPONTE DISMISSING WITH PREJUDICE AN AMENDED COMPLAINT BASED SOLELY ON PLAINTIFF’S FAILURE TO OBTAIN LEAVE OF COURT TO AMEND

Cooper v. Town of Jupiter, 35 Fla. L. Weekly D1335 (Fla. 4^th DCA June 16, 2010):

The court reminded us that leave to amend should be liberally given, and dismissal with prejudice is not proper, unless the privilege to amend is abused, or it is clear that the pleading cannot be amended to state a cause of action.

In this case, the trial court specifically stated it was dismissing the action with prejudice because the plaintiff failed to obtain leave of court prior to filing the amended complaint.  That was a drastic and unwarranted measure, and therefore the court reversed.

WHEN A PATIENT FALLS FROM A HOSPITAL BED WHILE RESTRAINED AND UNATTENDED, AND PLAINTIFF ALLEGES THE HOSPITAL FAILED TO MONITOR AND SUPERVISE, CLAIM IS ONE OF MEDICAL NEGLIGENCE SUBJECT TO PRESUIT REQUIREMENTS

South Miami Hospital v. Perez, 35 Fla. L. Weekly D1340 (Fla. 3^rd DCA June 13, 2010):

The personal representative filed a complaint alleging negligence against the hospital in connection with her husband’s death after he fell out of his hospital bed and ultimately died.  She sued for negligence, and did not comply with medical malpractice presuit requirements.  The trial judge denied the hospital’s motion to dismiss.

While in some slip-and-fall settings, presuit notice is not necessary, here, the plaintiff’s amended complaint alleged that while the decedent was left unrestrained and unattended in the critical care unit, he fell from his bed, and suffered a displaced fracture, which ultimately caused his death.

The court said it was clear that the allegations and the injuries suffered arose from the rendering of/or failure to render medical services to the decedent.  The court further noted that the allegations could only be proven through evidence that the alleged negligence of the health care provider fell below the prevailing standard of care.  Because the claim was essentially a medical negligence action, the plaintiff’s failure to comply with presuit was fatal, and dismissal was proper.

TRIAL JUDGE PROPERLY GRANTED SUMMARY JUDGMENT FOR INSURER, WHEN INSURED FAILED TO DISCLOSE THAT THE DRIVER IN THE ACCIDENT WAS GOING TO BE A DRIVER OF THE VEHICLE

Telemundo Television v. Aequicap Insurance Co., 35 Fla. L. Weekly D1341 (Fla. 3^rd DCA June 16, 2010):

Under the plain language of the policy, all drivers had to be reported to the insurer.  Thus, the policy did not provide coverage for an accident involving a non-listed driver.

LITIGANT WHO WAS SUED BUT NEVER PARTICIPATED IN THE LITIGATION, AND WAS ON THE LOSING END OF THE FINAL JUDGMENT, COULD NOT BRING A RULE 1.540(b)(1) MOTION MORE THAN ONE YEAR AFTER THE JUDGMENT WAS ENTERED

Mumenthaler v. Williams, 35 Fla. L. Weekly D1345 (Fla. 3^rd DCA June 16, 2010).

TO ADD A NEW PARTY WITH SUFFICIENT IDENTITY OF INTEREST AFTER STATUTE OF LIMITATIONS HAS RUN, PLAINTIFF MUST MAKE SHOWING THAT NEW PARTY HAD KNOWLEDGE OF LAWSUIT

Rayner v. Aircraft Spruce-Advantage, Inc., 35 Fla. L. Weekly D1346 (Fla. 5^th DCA June 18, 2010):

The underlying lawsuit related to an aircraft accident.  Plaintiffs timely filed suit against one of the defendants.  Shortly before the statute ran, plaintiff’s attorney inquired about another possible defendant, a distributor.  It was years later before plaintiff sought to add the distributor as a defendant.

Amendments should be permitted to relate back when they merely change the capacity in which a defendant has been sued.  More often than not, the original defendant lulls the plaintiff into believing that he has sued the correct party, until the statute of limitations runs.

However, the plaintiff may not do more than merely correct a misnomer.  Here, the plaintiff sought to bring in an entirely new party after the statute had expired.  While there is an exception to the rule when separate parties have a sufficient “identity of interest” such that the addition will not prejudice the new party, the exception is usually applied when the new party knew or should have known that the plaintiff made a mistake. 

In this case, the records show that the distributor was not aware of the lawsuit against the installer until after the statute had run.  Plaintiff alleged that “lack of prejudice” was demonstrated because the distributor was “on notice” that it might be sued shortly before the statute ran.  However, a “claim” is not necessarily a “lawsuit,” and thus mere notice of a potential claim does not support the application of the relation back doctrine (must be a lawsuit).

ABUSE OF DISCRETION TO DISMISS LAWSUIT FOR FAILURE TO TIMELY EFFECT SERVICE OF PROCESS WHERE DEFENDANT WAS SERVED WITH PROCESS, ALBEIT DEFECTIVELY, WITHIN THE TIME PERIOD DESIGNATED BY THE TRIAL COURT

Hannah v. Olivio, 35 Fla. L. Weekly D1347 (Fla. 5^th DCA June 18, 2010).

TRIAL COURT DOES NOT HAVE AUTHORITY TO DEFER ASSESSMENT OF COSTS INCURRED IN VOLUNTARILY DISMISSED ACTION

Shepheard v. Deutsche Bank, 35 Fla. L. Weekly D1350 (Fla. 5^th DCA June 18, 2010).

NICA STATUTE PROVIDING FOR AN AWARD OF COMPENSATION TO THE PARENTS OR LEGAL GUARDIAN NOT TO EXCEED $100,000, LIMITS PARENTAL COMPENSATION TO A SINGLE AWARD UNDER NICA – QUESTION CERTIFIED

Samples v. Florida Birth-Related Neurological, Inc., 35 Fla. L. Weekly D1350 (Fla. 5^th DCA June 18, 2010):

Under §766.31(1)(b)1, parents and legal guardians are eligible for an award not to exceed $100,000.  The parents argued that the provision was ambiguous, and should be construed to authorize an award of up to $100,000 to each parent rather than a single award of $100,000 to both parents.  They argued that such construction avoided the constitutional problems of equal protection, vagueness and access to courts.

The court found the statute clearly limited the parental compensation to a single award not to exceed $100,000.  However, it did certify the question to ask if that interpretation violates equal protection.

IN ORDER TO MAKE AN ORDER REVIEWABLE AS A NON-FINAL ORDER UNDER RULE 9.130(a)(3)c BASED ON WORKERS COMPENSATION IMMUNITY, THE ORDER MUST STATE THAT AN IMMUNITY DEFENSE IS NOT AVAILABLE AS A MATTER OF LAW

International Ship Repair v. Aleman, 35 Fla. L. Weekly D1357 (Fla. 2^nd DCA June 18, 2010).

ALABAMA LICENSED PHYSICIAN NOT A “HEALTH CARE PROVIDER” AS DEFINED BY §766.202(4) AND NOT ENTITLED TO PRESUIT NOTICE – TRIAL COURT IMPROPERLY DISMISSED ESTATE’S COMPLAINT

Dirga v. Butler, 35 Fla. L. Weekly D1385 (Fla. 1^st DCA June 21, 2010):

Plaintiff appealed the trial court’s order dismissing her complaint against an Alabama licensed physician, for failure to comply with the presuit provisions of Chapter 766.  Because this doctor was not a health care provider as defined under §766.202(4), he was not entitled to presuit notice.

The statute defines health care provider very specifically, and courts have strictly construed the term as sued in medical malpractice actions, in accord with the rule that statutory restrictions must be construed in a manner that favors access to court.

Under Chapter 766, the legislature specifically enumerated the class of persons entitled to presuit notice, which includes physicians licensed under Chapter 458.  The doctor defendant urged the court to review that term as a mere shorthand by the legislature for all physicians, including those from out-of-state.

However, the court rejected that argument.  It held that had the Florida Legislature wanted to broaden the scope of health care provider to apply to out-of-state physicians in Chapter 766, it certainly could have done so (and did not).

*Available to handle appellate and trial support matters for attorneys throughout the state.

Curd v. Mosaic Fertilizer, 35 Fla. L. Weekly S341 (Fla. June 17, 2010):

The Second District had certified two questions as those of great public importance:

1.     DOES FLORIDA RECOGNIZE A COMMON LAW THEORY UNDER WHICH COMMERCIAL FISHERMEN CAN RECOVER FOR ECONOMIC LOSSES PROXIMATELY CAUSED BY THE NEGLIGENT RELEASE OF POLLUTANTS DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

2.     DOES THE PRIVATE CAUSE OF ACTION RECOGNIZED IN SECTION 376.313 PERMIT COMMERCIAL FISHERMEN TO RECOVER DAMAGES FOR THEIR LOSS OF INCOME DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

The supreme court answered both questions in the affirmative. 

The fishermen plaintiffs had alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned defendant Mosaic that the quantity of wastewater in its storage facility was dangerously close to exceeding the safe storage level and that its dike was three feet narrower than the minimum required width.  One month later, the dike gave way and pollutants were spilled into Tampa Bay. 

The fishermen filed a complaint containing three counts:  Count I alleged statutory liability under §376.313(3); Count II alleged common law strict liability based on damages resulting from Mosaic’s use of its property for a ultra-hazardous activity; and Count III alleged simple negligence. 

The supreme court first found that §376.313(3) did allow commercial fishermen to recover damages for the loss of income, despite the fact that the fishermen did not own the property damaged by the pollution.  Because the statute (entitled “pollutant discharge prevention and removal”) broadly allows any person to recover for damages suffered as a result of pollution, and because that statute explicitly allows for an individual cause of action for damages caused by the destruction of the environment, the statute does subsume this cause of action.

The statute also allows a private cause of action for damages for a non-negligent discharge of pollution without proof that the defendant caused it.  Because the statute enumerates specific defenses like acts of God, acts of war, acts by a governmental entity or omissions or acts by a third party, and does not specifically list the lack of property ownership as a defense, the court found that the defense of not owning property was not a valid one.  Since there was nothing in the statutory provisions to prevent commercial fishermen from bringing an action pursuant to Chapter 376, the court held the cause of action was valid. 

Importantly, the court also ruled the economic loss rule did not bar the action.  The court noted that the economic loss rule in Florida applies in only two situations:  (1) where the parties are in contractual privity and one seeks to recover damages in tort for matters arising out of the contract, or (2) where the defendant is a manufacturer/distributor of a defective product which damages itself, but does not cause personal injury or damage to any other property.  Because the fishermen’s claims did not fall into either one of those two categories, the economic loss rule did not apply.

The court also rejected the claim that Mosaic did not owe an independent duty of care to protect the fishermen’s purely economic interests.  In Florida, the question of duty is linked to the concept of foreseeability.  As these fishermen were in the zone of risk, the court found a duty arose because there was a foreseeable risk created by the acts of the defendants.  For these reasons, the court found the fishermen had both a statutory and a common law cause of action, and ruled to allow the case to go forward.

A NON-RESIDENT COMMITS A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF §48.193(1)(b) WHEN HE OR SHE ALLEGEDLY MAKES DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF BUSINESS IN FLORIDA, BY POSTING STATEMENTS ON A WEBSITE, WHERE SUCH WEBSITE POSTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA

Internet Solutions Corp. v. Marshall, 35 Fla. L. Weekly S349 (Fla. June 17, 2010):

Because a woman who posted on her website in Washington made the material accessible to anyone with Internet access worldwide, once the allegedly defamatory material was published in Florida, the defendant committed the tortious act of defamation within Florida for the purposes of Florida’s long-arm statute.

However, the court noted that while it was only addressing the first step of the inquiry regarding personal jurisdiction, the second step is more restrictive, and precludes suit in any situation where the exercise of jurisdiction over a non-resident defendant would violate due process.  Because the question of whether due process concerns prevented the exercise of jurisdiction was not before the court, it did not answer it.

THE TRIAL COURT ERRS IN PROCEEDING WITH AN ACTION AFTER A DEFENDANT DIES, UNLESS THERE IS SUBSTITUTION OF THE DEFENDANT’S ESTATE AS THE PARTY

Schaeffler v. Deych, 35 Fla. L. Weekly D1296 (Fla. 4^th DCA June 9, 2010):

A woman was injured when a man made a right turn and negligently drove into her as she was walking her bicycle across the street.  The case was set for trial on a September 2008 docket.  In July, the defendant died from cancer. 

Notwithstanding that defense counsel was aware of the defendant’s death, the admission of liability and the agreement that there was no comparative negligence, the case went to trial and resulted in a $1.6 million dollar verdict, and a final judgment against the deceased. 

The defense moved for a new trial, and also sought to join the estate as an indispensable party.  The defense argued that the trial court erred in proceeding without substituting the estate as a party.  The estate was ultimately substituted, and the final judgment was amended to reflect entry of final judgment against the estate. 

Pursuant to Rule 1.260(a)(1), when an indispensable party to an action dies, the action abates until the deceased party’s estate or other appropriate legal representative has been substituted.  Here, the defendant was the sole defendant and an indispensable party to the action.  Because the case proceeded without the estate participating, the court ruled the estate’s due process rights were violated.  Even though the estate was “constructively” before the court, and everyone knew the defendant had died, plaintiff argued the estate was indeed constructively before the court.  Notwithstanding that this seemed to be a hyper-technical and illogical application of the rule, the violation of due process required a new trial.

ERROR TO ENTER SUMMARY JUDGMENT FOR INSURED IN A PIP CASE WHERE A SECOND AFFIDAVIT WAS FILED AND COULD NOT BE CONSIDERED A REPUDIATION OF THE FIRST AFFIDAVIT

United Automobile Insurance Co. v. Seffar, 35 Fla. L. Weekly D1302 (Fla. 3^rd DCA June 9, 2010):

In this PIP case, the physician admitted he had not reviewed any medical records, and said he would be happy to review any further material available on the patient.  Subsequently, the doctor received the records and reviewed them and concluded that much of the treatment was unreasonable, unrelated, and medically unnecessary.

The trial court struck the second affidavit, finding that it was a repudiation of the first and invalid.

The Third District reversed.  It found that any discrepancy in the second affidavit was not a bald repudiation of the first because the doctor did not have all the records and admitted that fact in his first affidavit.  Thus, it was error for the trial court to enter summary judgment in favor of the insured in the face of that affidavit.

APPELLATE COURT LACKED THE DISCRETION TO GRANT A NEW TRIAL BASED ON UNPRESERVED ERROR – ALTHOUGH COUNSEL TOLD JUDGE AT SIDEBAR HE THOUGHT AMENDED VERDICT WAS INCONSISTENT, FLORIDA LAW REQUIRES THERE BE A SPECIFIC REQUEST TO RESUBMIT THE MATTER TO THE JURY – ANY INCONSISTENCY WAS WAIVED WITHOUT SUCH A REQUEST

Barreto v. Wray, 35 Fla. L. Weekly D1307 (Fla. 3^rd DCA June 9, 2010):

Florida law requires there be a specific request to resubmit a matter to the jury when there is a perceived inconsistency, and the failure to do so waives it.  In this case, the evidence was consistent with the verdict and therefore the final judgment was affirmed.  

*Available to handle appellate and trial support matters for attorneys throughout the state.