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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.

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Automobile accidents can be very complex events. While fault often lies with one or more of the vehicles involved in the collision, there are sometimes vehicles involved in the events leading up to the accident that are not involved in the collision itself. An unidentified vehicle that was involved in the events leading to the accident but that was not involved in the accident itself is known as a “phantom vehicle.” A phantom 426515_25954070vehicle can complicate the determination of fault and make full recovery difficult.

When a phantom vehicle causes an accident, the injured person’s uninsured motorist coverage may apply. Uninsured motorist benefits are available even if there is no contact between the phantom vehicle and the insured vehicle. It can be difficult, however, to prove the existence and fault of the phantom vehicle, particularly in single-vehicle accidents.

The Fourth District recently heard a case involving a phantom vehicle defense. In Millsaps v. Kaltenbach, the plaintiff sued another driver, alleging that he had caused an accident in which she was injured. The defendant’s answer included an affirmative defense that he was attempting to avoid contact with another vehicle at the time he struck the plaintiff’s vehicle and had not failed to exercise reasonable care. The plaintiff amended her complaint to add an underinsured motorist claim on the grounds that the defendant did not have sufficient coverage to compensate her for her injuries, but she did not include a claim for uninsured benefits to cover any damages attributed to the driver of the phantom vehicle. She was subsequently permitted to conform to the evidence of the phantom vehicle’s negligence and to add a claim for uninsured motorist coverage based on that theory.

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Most Americans are at least somewhat aware that the Fifth Amendment to the U.S. Constitution provides a right against self-incrimination. The language of the Fifth Amendment provides that a person shall not “be compelled in any criminal case to be a witness against himself.” The privilege applies when a person’s answer might tend to subject him or her to criminal liability. The U.S. Supreme Court has made it clear 401721_5372that, although the protection is against compelled self-incrimination that may tend to subject the person to criminal responsibility, the privilege can be asserted in civil and administrative proceedings.

This does not mean that a person involved in civil litigation can assert the Fifth Amendment to avoid testifying or answering discovery that might tend to subject him or her to civil liability. Instead, it means that a party or litigant in a civil case may assert the Fifth Amendment to avoid testifying or responding to a request that might tend to subject him or her to criminal liability. Thus, the assertion of the Fifth Amendment protection in a personal injury action is not common.

It can occur, however, when the circumstances leading to the case have the potential for both civil and criminal liability. This situation can limit a plaintiff’s ability to assert his or her case. The Fifth District recently considered how to protect the rights of both parties in Doolittle v. Shumer. Doolittle arose after an alleged dog attack in which the plaintiff’s dog was killed and the plaintiff herself was bitten.   The plaintiff filed suit against the dog owners and the dog walker. While the case was still in its early stages, one of the dog owners was criminally charged for the incident.

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Under Florida law, damages in a personal injury case are reduced by all amounts the plaintiff has received from collateral sources, except when 1154152_71753895there are rights to subrogation or reimbursement. “Collateral source” is specifically defined in the statute. Collateral sources include payments related to certain provisions of the Social Security Act, any income disability act, and public programs that provide medical expenses, disability payments, or similar benefits. Collateral sources also include health, sickness, or income disability insurance and automobile insurance. A contract for the provision, payment, or reimbursement of health care services is also a collateral source. Finally, employer-provided wage continuation plans and systems designed to provide wages during disability are also collateral sources. Section 768.76, Florida Statutes.

In a recent case, the Fourth District considered whether the collateral source statute includes unemployment benefits. In Hurtado v. Desouza, the plaintiff’s vehicle had been rear-ended at a traffic light. The defendants admitted liability before trial, leaving open the issues of causation and damages.

The plaintiff was a pilot, but he had been laid off and was receiving unemployment benefits at the time of the collision. The jury awarded more than $1 million in damages, including $325,000 in lost wages. The defendants moved for a set-off of the plaintiff’s unemployment benefits against the damages. The trial court granted the set-off motion, and an appeal followed.

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People facing surgery or other serious medical procedures are asked to complete a lot of paperwork. Sometimes, between the emotions and rush to get the needed treatment, they sign things that they don’t fully understand. Unfortunately, this paperwork may include provisions related to the parties’ legal rights and responsibilities.

294065_4611 (743x800)The First District recently reversed itself on remand after originally affirming the trial court’s order to arbitrate in a medical malpractice case. In Brown v. North Florida Surgeons, P.A., the First District affirmed the trial court’s order based on its own opinion in Franks v. Bowers. The Florida Supreme Court, however, reversed Franks v. Bowers. The two cases had a common defendant and, it was determined, the same arbitration provision was involved. The plaintiff in the Brown case, therefore, appealed to the Supreme Court, who remanded to the district court for application of the Franks case.

The Brown opinion does not provide a lot of factual details. In Franks, however, a patient died after a vein was lacerated during surgery. His wife filed a medical malpractice suit. The defendants moved to compel arbitration based on a document signed by the deceased before his surgery. The trial court noted its reservations, but entered an order compelling arbitration. The plaintiff appealed, and the First District affirmed. The plaintiff then appealed to the Florida Supreme Court, arguing that the decision was in fonclict with a previous Supreme Court case.

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When an injury arises from an automobile accident, the defendants are generally the driver and owner of the at-fault vehicle or vehicles. In some cases, others may bear some responsibility, including a bar or restaurant that served alcohol to the at-fault driver, or a vehicle manufacturer whose defective product caused the accident or injury. In a recent case, the mother and personal representative of a woman killed in an automobile accident filed suit against the designer and manufacturer of a guard rail.

1381841_29055105In Transportation Engineering, Inc. v. Cruz, a front-seat passenger was killed in a single-vehicle accident when the driver lost control of the vehicle and it left the road and hit an uncushioned guardrail end. After obtaining the driver’s policy limits, the mother filed suit against the state Department of Transportation (“DOT”), the company that built and maintained the guardrail, the company that designed it, and other entities that were not involved in the appeal.

The plaintiff alleged that the DOT failed to warn of or remedy a dangerous condition caused by an improperly designed and constructed guardrail. She alleged that the DOT failed to prevent vehicles from being impaled on the end of the guardrail at the emergency crossover, in violation of both DOT and national safety standards. She also alleged that the designer and constructor also failed to follow the applicable standards.

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A person injured in an assault may, depending on the circumstances surrounding the assault, have a claim against the premises owner for negligent security. Such cases may include allegations that the premises owner failed to provide adequate lighting, security, or other measures that could have prevented the attack. The Fifth District recently considered whether a premises owner’s insurer is responsible for paying 9332_3175such a claim in Wilshire Insurance Company v. Poinciana Grocer, Inc.

In this case, a man who was employed by a garbage collection company was stabbed on the premises by a man leaving a convenience store. The injured man sued the premises owner for negligently failing to maintain the premises in a safe condition, failure to warn, and failure to prevent the assault with adequate security or safety.  The opinion does not provide detailed information regarding the allegations.

The policy in question has an exclusion related to assault and battery. The exclusion applies to claims arising from assault or battery and acts or omissions related to preventing or suppressing assault or battery. The exclusion further provides that the insurer is not responsible for defending the insured against such claims.

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Even when an insurer agrees to pay an accident victim, the insurer sometimes places unreasonable terms and conditions on that settlement. In a recent case, the Fourth District considered whether the parties had reached a binding settlement agreement before the suit was filed. The plaintiff’s son was killed as a passenger in a single-car accident. The plaintiff’s counsel sent a demand letter to the insurer containing a settlement offer. The terms of the offer as presented in the demand were that the insurer was to provide an affidavit of no additional insurance coverage, a certified copy of the policy, a check for the property damage in the specified amount, and a draft for the bodily injury policy limits.               748020_22613557

The insurer responded within the time frame requested in the demand. In the response, the insurer stated that it was a complete acceptance of the terms and conditions in the demand. The insurer provided the requested affidavit of no additional coverage, a certified copy of the policy, the property damage check, and the bodily injury settlement draft. The insurer also provided an affidavit from Christice Guillame attesting that she had no additional coverage and a release that would release all claims against Christice Guillaume and Patricia Guillaume. The acceptance was expressly conditioned upon the release, and the insurer requested that the executed release be returned before the funds were disbursed.

Unfortunately, the court does not clearly set the roles of the defendants or exactly which defendants were covered under the policy. The court did note, however, that Patricia Guillaume was both a non-insured under the policy and a non-party at the time the release was sent to the plaintiff’s counsel.

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This blog has previously discussed State Farm Mutual Ins. Co. v. Curran, in which the Florida Supreme Court found that submitting to a compulsory medical examination (“CME”) was not a condition precedent to coverage. In a recent case, the Fourth District considered whether submitting to an examination under oath (“EUO”) was a condition precedent to coverage.

In Solano v. State Farm Insurance Company, the trial court granted the defendant’s motion for summary judgment. The trial court held that 1409592_81898043the EUO was a condition precedent. The Fourth District, however, found that there remained disputed factual issues regarding the plaintiffs’ compliance with the policy, and summary judgment was inappropriate.

The case arose from property damage resulting from a hurricane. At the time they were asked to submit to the EUO, the plaintiffs had hired a public adjuster and submitted three proofs with increasing claims of damage. On the date of the EUO, they submitted a fourth proof of loss. Although the husband did go through with the EUO, he deferred many of his answers to the adjuster and others to his wife. He then refused to allow the EUO of his wife to proceed that day because he was concerned that it would put her under too much stress. The adjuster also refused to give a statement under oath. The wife’s EUO was subsequently scheduled, but five days before it was to occur, the plaintiffs filed suit to compel an appraisal. The plaintiff appeared for her EUO, but the defendant chose not to proceed in light of the pending litigation.

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The Second District recently addressed the issue of proper procedure for determining a setoff for Personal Injury Protection (“PIP”) benefits. In Moody v. Dorsett, the plaintiff was injured in an automobile accident. He received $5,484.96 in PIP benefits from his own carrier and filed suit against the other driver. The jury awarded him $11,237.86.

During trial, the defendant’s attorney raised the issue of a misunderstanding between counsel regarding whether the setoff procedure should be SONY DSCdecided by the jury or by the court after the verdict. The plaintiff’s counsel did not dispute the amount of the setoff but did not stipulate to the issue being addressed after the verdict. The trial court ruled that the matter would be decided post-verdict, overruling the plaintiff’s objection, and the defendant relied on the ruling and did not present evidence of the PIP benefits.

After trial, the defendant moved to apply the setoff. The plaintiff objected, raising the Florida Supreme Court decision in Caruso v. Baumle. In that case, the Florida Supreme Court held that the defendant must present evidence of PIP payments at trial so the verdict can be reduced by the setoff, absent stipulation otherwise. The plaintiff argued that with no stipulation, the trial court had to deny the defendant’s motion for setoff. The trial court did just that, entering judgment without the setoff, and the defendant appealed.

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