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As this blog has previously discussed, medical malpractice cases have certain procedural requirements, including pre-suit requirements, that are not required in other negligence cases. Plaintiffs must therefore determine if the case lies in medical malpractice or general negligence well before suit is filed.

A case recently decided by the Fourth District involved an argument by the plaintiff that the case was one of general, not medical, negligence, despite the act in question occurring in a hospital. In this case, the personal representative of the decedent’s estate filed a wrongful death lawsuit against a hospital. The complaint alleged that the decedent had been dropped onto an x-ray table, resulting in a spinal fracture. Due to her age and medical condition, there were limited appropriate options for treating the decedent’s broken back. The complaint alleged that the broken back ultimately caused her death.58761_8380 (800x623)

The defendant moved to dismiss on the grounds that the plaintiff had failed to comply with the pre-suit requirements for medical malpractice cases. The plaintiff argued that the pre-suit requirements did not apply because the complaint stated a cause of action in general negligence, not medical malpractice. The trial court granted the motion to dismiss, and the plaintiff appealed.

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This blog has previously discussed some of the complexities of Florida medical malpractice law. These complexities are compounded when the healthcare provider is a government entity. Pursuant to 768.28(6)(a), Florida Statutes, a plaintiff must present her claim in writing to the state or a state agency or subdivision within three years after the claim accrues. A recent Third District case addressed what happens when a plaintiff in a medical malpractice case against a government entity does not specifically plead compliance with this notice requirement.

stethoscope notepadExposito v. Public Health Trust of Miami-Date County involved a girl who was born prematurely and suffered a number of health conditions, including seizures, spastic quadriplegia, and encephalopathy. Her mother pursued the claims against the Public Health Trust of Miami-Dade County (“Public Trust”), the University of Miami School of Medicine (“University”), Jackson Memorial Hospital, and individual doctors. Her attorneys sent written notice of the claim to the Florida Department of Financial Services, the Public Trust, the University, Jackson Memorial Hospital’s CEO, and the individual doctors. The notices were sent by certified mail, return receipt requested, on July 6, 2005. The date of the incident was listed as July 11, 2005, the date of the girl’s birth.

The original complaint was filed on July 10, 2010. The complaint contained language indicating that the plaintiff had complied with “[a]ll statutorily required conditions precedent.” Neither the original complaint nor the first amended made specific reference to compliance with the notice requirements contained in 768.28(6), Florida Statutes.

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Generally, the parties to a lawsuit bear their own expenses, but there are exceptions. In Florida civil cases, a plaintiff may be liable for the defendant’s fees after rejecting an “offer of judgment” if there is a judgment of no liability, or if the final judgment is 75% or less than the offer of judgment. An offer of judgment is simply a settlement offer that is made after the suit is filed and that conforms to certain statutory requirements. Pursuant to section 45.061, Florida Statutes, the plaintiff has 30 days to accept the defendant’s offer of judgment. The specific requirements for offers of judgment are set out in Florida Rule of Civil Procedure 1.442. Pursuant to the rule, proposals for offers of judgment to plaintiffs may not be served earlier than 90 days after the action commences.

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The Third District recently addressed what happens when a defendant makes an offer prior to 90 days after the action commences. Design Home Remodeling Corp. v. Santana arose from a slip and fall on premises owned by a condominium association. The injured man and his wife filed suit against the association, alleging negligent maintenance of the premises. The association’s answer indicated that another company was responsible for any negligent maintenance. The plaintiffs amended the complaint to add that company as a defendant.

Sixty days after the amended complaint was filed, the defendant company served the plaintiffs with proposals for settlement that expressly referenced 768.79, Florida Statutes and Rule 1.442. The plaintiffs did not respond.

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Unfortunately, in a very serious accident, the available liability insurance may be insufficient to fully compensate all of the victims for their injuries. In a recent unpublished per curiam decision, the 11th Circuit addressed the application of an exclusion in an uninsured motorist policy. In Drew v. Safeco Insurance Company of Illinois, the injured person was a passenger in a vehicle driven by his friend when it was involved in an accident with another vehicle. The vehicle was owned by the driver’s aunt. The driver of the other vehicle was killed, and her passenger was seriously injured.

headlamp-2940_1280 (800x533)The vehicle in which the injured man was driving was insured by the owner, and the driver was a rated driver on the policy. The liability limits of that policy were exhausted by claims paid to the family of the other driver. The injured man therefore sought recovery under the uninsured motorist (UM) provision of the policy. The insurer denied it on the basis that the vehicle could not be insured under the liability portion of the policy and uninsured under the terms of that policy. The injured man filed suit against the driver, the owner, and others. The owner then filed an action for a declaratory judgment, naming the insurer and the injured person as defendants. The injured person was ultimately realigned as a plaintiff. The trial court granted summary judgment in favor of the insurer, finding that the injured man was not covered by the UM provision.

On appeal, the 11th Circuit noted that uninsured motorist coverage applies when an insured person, which includes permissive passengers, is entitled to recover from the driver or owner of an uninsured vehicle. Generally, a vehicle cannot be both insured and uninsured under the same policy. However, there is an exception to this rule when, in an accident involving a vehicle owned or available for the regular use of the named insured person or a relative, “liability coverage is excluded for any person other than you or any family member for damages sustained in the accident by you or any family member,” as stated in the policy in question.

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Florida slip and fall law changed when the state enacted section 768.0755, Florida Statutes, effective July 1, 2010. When a plaintiff’s injury arises from a slip and fall on a transitory foreign substance, the plaintiff must prove that the defendant had either actual or constructive knowledge of the dangerous condition and should have taken action to remedy the condition. The plaintiff may show constructive knowledge by proving that the dangerous condition existed for so long that it should have been known through the exercise of ordinary care or that the condition was foreseeable because it occurred regularly.

800090_42064408A recent First District case addressed the issue of constructive notice. In Walker v. Winn-Dixie Stores, Inc., the plaintiff was injured when she slipped and fell at a grocery store. When the plaintiff and her companion completed their shopping, the two returned to their vehicle. The plaintiff described the weather as “steamy” at that time but said it did not appear to have rained. They were outside for five or ten minutes, and then the plaintiff returned the electric cart used by her companion to the store. As she did so, it began “misting rain.” She testified that less than a minute passed from the time she began riding the cart to the time she arrived at the front entrance. After she parked the cart and began walking back toward the door, she slipped and fell. She testified that she fell within a foot of the cart.

The plaintiff testified that she did not see water on the floor before she fell, and she could not say whether she saw any after she fell. She said the condition that caused her to fall was “unnoticeable” and “just drops of water.”

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The National Highway Traffic Safety Administration’s (“NHTSA”) annual “Drive Sober or Get Pulled Over Campaign” ran from August 15 through Labor Day. According to information from the NHTSA, an average of one person every 51 minutes loses his or her life as the result of an alcohol-impaired automobile crash. In an effort to make the roadways safer during the last days of summer and over the Labor Day holiday, the NHTSA teams with law enforcement each year to crack down on impaired driving. The Florida Highway Patrol, along with a number of local police departments, participates.152511_2229 (800x601)

According to a press release from Florida Highway Safety and Motor Vehicles, all uniformed Florida Highway Patrol personnel will patrol major roadways during the Labor Day holiday. Even those employees ordinarily assigned to administrative duties will be on patrol. Auxiliary troopers will also be involved. The intent is not only to deter impaired driving and other traffic violations, but also to provide assistance to travelers who break down or need help.

Labor Day weekend can be a particularly dangerous time to be on the roads. According to the NHTSA, nearly four out of 10 of the fatal crashes that occurred over the holiday weekend in 2012 involved a drunk driver, and there was an average of one fatality every 34 minutes as the result of an alcohol-related crash during the holiday weekend.

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Plaintiffs in personal injury cases may be entitled to recover both economic and non-economic damages. Economic damages are intended to compensate for the economic loss suffered by the plaintiff, including medical expenses and lost wages. Non-economic damages, however, are not based on financial loss, but on losses that are more difficult to assess with a dollar value, such as pain and suffering and loss of companionship.

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A recent federal case in the Southern District of Florida considered whether a multi-million dollar award was appropriate under the facts of the case. In Wisekal v. Laboratory Corp. of America Holdings, a husband filed a medical malpractice lawsuit as the personal representative of his wife’s estate after she died from cancer. A jury determined that the decedent bore 25% comparative fault, but awarded more than $15 million after the comparative fault reduction. The defendant moved for a new trial and for judgment as a matter of law, and the court denied both. The defendant also moved for remittitur of both the economic and non-economic damages, and, alternatively, for a new trial on damages.

The court determined that the economic damages award was reasonably supported by the evidence and denied the defendant’s challenge to that part of the award.

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Jurisdiction is particularly important in Florida, where there are often tourists and visitors on the roads and engaging in various activities. Litigation against a non-resident presents some procedural challenges. Such cases often end up in federal court. Federal courts have original jurisdiction over civil cases between parties with diverse citizenship when the amount in controversy is greater than $75,000. Pursuant to 28 U.S.C. § 1441, a defendant can remove a case to federal court when the federal court has original jurisdiction.

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The Middle District of Florida recently ruled on a case in which the defendant insurer removed a case, based in part on the plaintiff’s pleadings. Jirau v. Wathen arose from an automobile accident. The plaintiff filed suit in state court against the other driver and against the plaintiff’s own insurer. The claims against the insurer included a claim for underinsured motorist benefits and a bad faith claim.

In the complaint, the plaintiff alleged that the defendant driver was a Florida resident at the time of the accident. The plaintiff had difficulty perfecting service and pled in the alternative that the defendant driver was a non-resident of Florida or was concealing his whereabouts. By pleading that the defendant was a non-resident or was concealing his whereabouts, the plaintiff would be able to perfect service on the Secretary of State as a substituted agent. The plaintiff did not have to serve the Secretary of State, but ultimately found and served the defendant driver at a Florida address.

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Pursuing a personal injury claim against the government is very different from pursuing a similar claim against an individual. Claims against the state of Florida, its agencies, or its subdivisions must be presented in writing before a lawsuit may be filed. Additionally, there are limitations in regards to the damages. Finally, certain claims against government entities may be precluded by sovereign immunity.

1443938_20970553 (800x533)In a recent case, the First District found that an injured woman’s claims against the Florida Department of Transportation were not precluded by sovereign immunity. In Bergmann v. Florida Department of Transportation, the plaintiff filed a negligence action against the Florida Department of Transportation (“FDOT”) after an automobile accident. She alleged that the FDOT was aware of a hidden hazardous condition that caused her collision, but that the FDOT did not correct the condition or warn her of the danger. The trial court dismissed the case, finding that the claims were precluded by sovereign immunity. The plaintiff then appealed to the First District Court.

Florida law provides a limited waiver of sovereign immunity in personal injury negligence claims against the state and its agencies and subdivisions. Sovereign immunity is not waived for all acts, however. Sovereign immunity remains for discretionary, judgmental, and policy-making functions. The Florida Supreme Court has stated that certain functions are inherent in governing and that it would be a violation of the separation of powers doctrine to allow those functions to be scrutinized by courts. Operational decisions, however, are not subject to sovereign immunity. In Department of Transportation v. Neilson, the Florida Supreme Court stated that building a road with a sharp curve would not create governmental liability, but a failure to warn the public that the curve could not be safely traveled at greater than 25 miles per hour could be a negligent omission at the operational level, and therefore subject to liability. Similarly, failure to maintain roads or traffic control devices could also be the basis of liability.

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Following procedural rules is important. Some deadlines can be extended by mutual agreement, but failing to meet deadlines that cannot be extended or without the agreement of the other party can be very detrimental to the case. The Third District recently heard a case related to the timing of a Motion for Summary Judgment. In Otero v. Gomez, the plaintiff had been hit by a car while riding his bicycle across an intersection. The defendant was not the driver of the car, but the owner of the adjacent property. The plaintiff alleged that a wall on the defendant’s property obstructed his view of oncoming traffic. The plaintiff alleged that the defendant was negligent in either creating the dangerous condition or allowing it.

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The defendant moved to exclude expert testimony that the wall’s obstruction of the view of drivers violated county ordinances and Department of Transportation standards. The defendant argued that such testimony was not relevant because the defendant did not owe a duty to the plaintiff. Four days later, the defendant filed a motion for summary judgment on the same basis. The trial court told the defendant it would not hear the motion for summary judgment before trial.

Eight days after the motion was filed and just days before trial, the defendant amended the motion in limine to exclude all evidence of Department of Transportation standards. The amended motion argued that the defendant owed no duty to the plaintiff and was not liable as a matter of law.

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