Published on:

Before a person files a medical malpractice suit in Florida, he or she must provide notice to each prospective defendant of the intent to file suit. The notice must be set by certified mail, return receipt requested. The notice must list all healthcare providers the person has seen for the injuries in question since the alleged negligence, all of the healthcare providers who treated or evaluated the person in the two years prior to the 737201_80327187alleged negligence, and copies of all medical records relied upon by the injured person’s medical expert. Section 766.106, Florida Statutes.

The injured person cannot file suit for 90 days after mailing the notice to any prospective defendant. During that time, the prospective defendant or his or her insurer is to conduct a pre-suit investigation. The statute of limitations is tolled as to all potential defendants during the 90-day period.

The question then arises as to whether the injured person must serve all prospective defendants at the same time, or if he or she may serve other defendants during the tolling period, thereby extending the statute of limitations. The Third District recently answered this question, finding that a plaintiff may provide notice to another prospective defendant during the tolling period and extend the statute of limitations as to all defendants.

In Salazar v. Coello, the plaintiff allegedly suffered an injury as a result of a surgical procedure. She first gave notice to the surgeon and the hospital. She subsequently gave notice to the anesthesia providers. She later filed suit against the surgeon, the hospital, and the anesthesia providers.

Continue reading →

Published on:

It is common for a nursing home or assisted living facility to require residents to sign arbitration agreements as part of their admission documentation. When something goes wrong and the resident is injured, the arbitration agreement is often litigated.314323_2434

A recent Florida case addressed an unusual issue involving arbitration agreements. In Davis v. Hearthstone Senior Communities, Inc., a woman was injured and ultimately died while residing in a nursing home. As part of the admissions process, she had signed a document that the nursing home alleged was an arbitration agreement.

The woman’s personal representative filed suit against the nursing home, and the nursing home filed a motion to compel arbitration. As part of discovery, the estate requested the admissions documents. The defendant produced only the signature page of the arbitration agreement.

Continue reading →

Published on:

Social media has had a significant impact on various aspects of litigation, particularly discovery. The Fourth District recently considered whether a defendant had a right to examine the photos posted on the plaintiff’s Facebook account.

In Nucci v. Target Corporation, the plaintiff allegedly slipped and fell on the defendant’s premises. She alleged that she was injured, 3d illustration: Technique. concept cameraexperienced pain, and incurred medical expenses. She also alleged a physical handicap and permanent injury, lost earnings, lost earning potential, pain and suffering, and aggravation of pre-existing injuries. She filed suit against the store and affiliated entities.

The store’s attorney found the number of photographs on the plaintiff’s Facebook profile decreased after her deposition. The defendant moved to compel inspection of the Facebook profile and sent a letter asking the plaintiff not to destroy any information posted on her social media accounts.

Continue reading →

Published on:

Like other states, Florida has a nonjoinder statute. Section 627.4136, Florida Statutes, provides that a person who is not an insured under the terms of a liability insurance policy shall not have a cause of action against the insurer without first obtaining a settlement or verdict against the insured. Furthermore, the statute allows an insurer to include language in the policy precluding non-insureds from joining the insurer as a defendant with the insured before a verdict is reached. This statute is intended to prevent the availability of insurance from influencing the jury’s 1437844_33253993determination of liability or its award of damages. The concern is that the jury may be more likely to find liability or award greater damages if it learns that the funds will be paid by an insurance company rather than the defendant.

In a recent Third District case, an injury victim filed suit and included the liability insurer as a defendant, arguing that her claim was based on her position as an omnibus insured under the medical payments coverage. In Starr Indemnity and Liability Co. v. Morris, the plaintiff was injured in a slip and fall while aboard a sport fishing vessel. She filed a negligence suit against both the fishing company and the vessel’s captain. She also included a breach of contract claim against the insurer.

The insurer moved to dismiss, based on the nonjoinder statute. The trial court found that the statute did not apply to the plaintiff’s claim that she was an insured and had a direct cause of action. The insurer then filed for either reconsideration of its motion or the severance of the action against it from the negligence claims. The trial court again denied the motion, and the insurer filed a certiorari petition.

Continue reading →

Published on:

As previously discussed in this blog, Florida places liability on bars and restaurants for selling alcohol to a person who later injures another in an automobile accident in very limited circumstances. Section 768.125, Florida Statutes only makes a bar or restaurant liable in cases when it sold alcohol to a person who was underage or habitually addicted to alcohol.                                                             1053020_66058710

The plaintiff in a recent Second District case argued that a resort was liable, not just for serving the alcohol, but for allowing a patron to drive away from the premises while intoxicated. In Hall v. West, the plaintiff had been injured after being hit by a car driven by the defendant driver. The driver had been to the resort and had drunk alcoholic drinks both before and during his time there. He was asked to leave and escorted to his car by security personnel. He drove away. The collision occurred around two hours later. The driver’s blood alcohol level was well above the legal limit.

The plaintiff filed suit against both the driver and the resort. He alleged the resort was negligent in several ways. He alleged that it failed to identify people who entered the premises already intoxicated, failed to prevent patrons from being served excessive amounts of alcohol, failed to ensure that people leaving the premises while intoxicated had a safe way home, and failed to employ people who would act with due care in dealing with intoxicated customers and follow the company’s policies and procedures to ensure intoxicated customers left safely. The plaintiff relied on a Fifth District case, Bardy v. Walt Disney World Company. The trial court found that the facts in the present case were distinguishable and did not create the duty that was found in Bardy. The trial court granted summary judgment in favor of the resort. The Second District agreed with the trial court, finding that the language of the statute limited the resort’s liability for automobile accidents to those circumstances described:  selling alcohol to an underage person or someone who was habitually addicted to alcohol. The driver in this case was of legal drinking age, and there was no evidence suggesting that the resort knew him to be habitually addicted to alcohol.

Continue reading →

Published on:

Can a jury find that a plaintiff has been permanently injured but not award future non-economic damages? In Florida, the jury can do just that. In a Buitrago v. Feaster, the Second District considered whether the plaintiff’s motion for a new trial had been properly granted.

This case was based on an automobile accident. The jury awarded the plaintiff, past and future medical damages, lost wages, and past noneconomic damages. The jury did not award the plaintiff any future non-economic damages. The plaintiff moved for a new trial, arguing that 110399_2052 she was entitled to future noneconomic damages as a matter of law. She argued that because the jury found a permanent injury, she was automatically entitled to future noneconomic damages. The trial court granted the motion.

The plaintiff did not argue that the verdict was against the manifest weight of the evidence, the proper standard in considering a motion for a new trial. With no specific findings to support the trial court’s order, the district court assumed that the ruling was based on the plaintiff’s argument. The Florida Supreme Court previously addressed that argument, finding that a verdict that does not award future noneconomic damages is not inadequate as a matter of law when the jury has found the existence of a permanent injury and future medical expenses.

Continue reading →

Published on:

Parties are generally allowed latitude in making closing arguments, but some arguments and techniques are improper. The First District recently considered whether it was proper for the trial court to allow the use of a videotape of the defendant’s deposition in closing argument.

In this case, the defendant driver testified that he was trying to cross five lanes of traffic in a delivery truck when a vehicle pulled onto the 1192806_72189016roadway from a parking lot. He said that the vehicle passed in front of him, preventing him from crossing the divided highway and forcing him to stop with the back of his truck blocking traffic.

The plaintiff’s counsel used the defendant driver’s deposition testimony to impeach his trial testimony. The defendant objected to the plaintiff’s request to also use the video during closing argument. The defendant objected, but the court reserved ruling. The court then allowed the plaintiff to play a portion of the deposition during closing, but the defendant did not object at that time.

Continue reading →

Published on:

1209275_33486842Some states place liability on bars or even social hosts for supplying alcohol to a person who subsequently is responsible for an automobile accident. Florida law, however, limits the liability of bars and restaurants in drunk driving cases. In Florida, liability only arises when someone willfully and unlawfully serves or furnishes alcohol to an underage person or knowingly serves alcohol to a person who is addicted to alcohol. § 768.125, Florida Statutes.

The First District recently decided a case involving this issue. In Case v. Newman, a woman was killed in an automobile accident involving a 17-year-old driver. The woman’s daughter and personal representative filed suit against the driver, his father and grandfather as owners of the vehicle, and a liquor store and associated individuals. The plaintiff settled with the driver and vehicle owners.

The plaintiff alleged that one of the defendants sold alcohol to the driver several times without obtaining proof of age, including the night of the accident. The plaintiff alleged that the defendants willfully and unlawfully sold alcohol to the driver when they knew or should have known he was underage. She further alleged that the sale of alcohol to the driver was negligence per se, since it violated a criminal statute.

Continue reading →

Published on:

In a very tragic recent case, the Second District addressed how the Wrongful Death Act interacts with Section 732.802, Florida Statutes, which prevents a person who unlawfully and intentionally kills another from benefiting from the deceased person’s estate.    1409595_99556189

In Cosman v. Rodriguez, the defendant had been convicted of killing his wife of many years. His wife’s daughter filed a wrongful death suit as the personal representative of her mother’s estate and later amended to add individual claims. The court dismissed the daughter’s individual claims, finding that, as an adult, she was not entitled to a survivor’s claim when her mother had a surviving spouse.

The parties stipulated to no compensatory damages, and the case proceeded on the issue of punitive damages. The jury awarded no damages, and the plaintiff appealed the final judgment.

The appeals court first addressed the dismissal of the daughter’s individual claims. Under the Wrongful Death Act, when there is not a surviving spouse, adult children of the deceased are entitled to recover loss of companionship, mental pain and suffering, and other damages.

Continue reading →

Published on:

Medical malpractice plaintiffs must follow certain procedural rules, but what procedures is the court required to follow?

In Nieves v. Viera, the Third District considered whether the trial court erred by failing to hold an evidentiary hearing before denying the defendant’s motion to dismiss. This medical malpractice case arose after the defendant doctor performed surgery on a fractured femur. No issues arose during or immediately after surgery, but the patient suffered respiratory arrest after receiving pain medication several hours later. 15057_8194During the next four days, the hospital never contacted the surgeon, nor did the surgeon contact the patient. The patient died four days after her surgery.

The patient’s personal representative sent notice of intent to initiate a medical malpractice action against the surgeon. The notice included the verified written medical expert opinion of a doctor who specialized in internal medicine and pulmonology. The personal representative filed suit against the surgeon and several other defendants, but only the surgeon was involved in the appeal.

Continue reading →