Personal Injury

What Constitutes a Florida Medical Malpractice Case?

Published on: July 23, 2020 | by Friedman, Rodman & Frank, P.A.

When you head to an appointment with a Florida medical provider, you expect to be treated with respect and to get better soon. But what happens when you’re injured or hurt because of the health care service you receive? Can you sue for medical malpractice? Was it medical malpractice to begin with?

Medical malpractice cases in Florida are unique, in that they have their own requirements. When determining whether a medical malpractice theory applies, courts look to whether the injury arose out of the delivery of, or failure to deliver medical care or services by a health care provider. Healthcare providers in Florida include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals or ambulatory surgical centers. If the defendant is a health care provider under Florida law, then the case falls under medical malpractice and requires stricter procedural rules. Additionally, health care providers or facilities that are not expressly included within the definition of the statute can also be vicariously liable for acts of health care providers.

However, not all situations involving health care related services are necessarily considered medical malpractice in Florida. For example, in a recent state Supreme Court opinion, a plaintiff brought suit against her massage therapist after he allegedly sexually assaulted her during a massage. Before the assault, two separate customers had complained to the facility about the therapist’s conduct and how he had been inappropriate with them during their massages. The plaintiff sued the massage therapy company and claimed that it was negligent in its training, supervision, and retention of the massage therapist who assaulted her.

Recovering from an Airline Related Injury in Florida

Published on: July 6, 2020 | by Friedman, Rodman & Frank, P.A.

For some, flying is stressful. For others, it’s the beginning of an adventure. But everyone knows that when you get on a plane, there’s a certain amount of risk in traveling. However, no one expects to board a flight and leave with a physical injury. When an airline is responsible for injuring a Florida passenger, the airline may be accountable.

When an airline passenger suffers a physical injury while embarking or disembarking on a plane, the only available recourse is to sue the airline for recovery under the Montreal Convention, which trumps any state law claims the passenger could bring. The Convention requires that the passenger bring suit within two years of the date of arrival at the destination.

In a recent appellate case, a plaintiff was on a flight to London when he was accused of stealing a crew member’s bag. Although the bag was found later, the airline refused to let the plaintiff disembark the flight. The plaintiff was an older gentleman who recently had surgery on his leg and had not yet fully recovered. When the airline turned the man over to the authorities, he was marched around the airport to multiple locations while being forced to carry his luggage with no help. Despite showing obvious signs of exhaustion, pain, and distress, the plaintiff was never given an opportunity to sit down. After denying the accusations against him to a police officer, the officer told him he was free to go.

Appellate Court Holds Grocery Store Was Not Entitled to Summary Judgement in Florida Slip and Fall Case

Published on: March 19, 2020 | by Friedman, Rodman & Frank, P.A.

Late last month, a state appellate court issued an opinion in a Florida premises liability case involving a woman who slipped and fell while at her local grocery store. The case required the court to determine if an affidavit of the plaintiff’s sister was properly excluded from consideration by the trial court before it granted the store’s motion for summary judgment. Ultimately, the court concluded that the sister’s affidavit should have been considered, and thus, summary judgment was inappropriate.

According to the court’s opinion, the plaintiff and her sister were shopping at the defendant grocery store when the plaintiff slipped and fell after stepping in a puddle of water. The plaintiff filed a Florida slip and fall lawsuit against the store, and presented an affidavit from her sister in support of her claim. In the affidavit, the sister explained that the puddle was right next to a large cooler, was oblong in shape, and looked to have been stepped in by other people.

The grocery store asked the court not to consider the sister’s affidavit because it “baldly repudiated” the testimony that she gave at a prior deposition. At the deposition, however, the sister was only asked two questions, including the origin of the puddle and whether it consisted of a transparent liquid. Neither counsel asked the sister about the shape of the puddle.

Court Clarifies Availability of Damages in Florida Toxic Tort Case

Published on: February 5, 2020 | by Friedman, Rodman & Frank, P.A.

In a recent opinion, Florida’s Supreme Court addressed whether an individual who suffers injuries because of a company’s discharge of toxic pollutants can hold the company liable for their damages. This case required the Supreme Court to dissect and analyze Florida’s 1970 Pollutant Discharge and Control Act (1970 Act) and the Water Quality Assurance Act of 1983 (1983 Act), ultimately finding in favor of a plaintiff who suffered serious personal injuries after contacting spilled battery acid.

Florida’s Statute of the 1983 Act imposes strict liability for the discharge of specific toxic pollutants. Some common pollutants are nerve agents, asbestos, sulfuric acid, benzene, pesticides, and silica. Exposure to these toxins can result in serious medical conditions, including, asbestosis, Hodgkin’s disease, lung disease, Leukemia, Lymphoma, and Mesothelioma. Most often, individuals suffer exposure through the workplace, use of medications and pharmaceuticals, and a person’s residence. In some instances, individuals may experience exposure through the air or drinking water. The most common defendants in these toxic torts cases are the company who polluted the groundwater, an employer who does not abide by workplace safety standards, or a home manufacturer or landlord who does not appropriately test for mold or lead.

The plaintiff was a tow truck driver responding to the scene of an accident involving a disabled semi-truck accident. The semi-truck was transporting batteries at the time of the accident, and the collision resulted in a massive battery acid spill. While preparing the semi-truck for towing, the plaintiff came into contact with battery acid and suffered chemical burns. The tow truck driver filed a lawsuit against the trucking company, arguing that the company was liable for this damages under strict liability theory according to the Acts. The defendant appealed the plaintiff’s $5 million jury award, arguing that the 1970 Act expressly bars personal injury actions arising from an environmental action, and the 1983 Act does not address damages.

Uber’s First Safety Report Reveals Significant Passenger and Driver Claims

Published on: January 29, 2020 | by Friedman, Rodman & Frank, P.A.

The significant growth of ride-sharing companies has resulted in new professional and financial opportunities for many people, in addition to another way for commuters to get to work. However, this method of transportation has its own set of complications, especially when someone suffers an injury during a pickup or ride. In addition to the typical risks associated with car travel, utilizing these companies introduces a whole new set of concerns. Additionally, individuals who use Florida ride-sharing companies, like Uber and Lyft, often face difficulties recovering for damages that they suffer during their rides.

In response to competing with new ride share companies, compounded with the rising concern of the safety of drivers and riders, Uber began a 21-month effort to review their safety standards. In effectuating their safety mission, they undertook a close examination of their business practices by reviewing hundreds of thousands of customers’ support requests and categorized them according to severity and response.

The jarring results revealed that there were over 3,000 reported sexual assaults in 2018 and close to 3,000 in 2017. Additionally, there were 5,500 other incidents involving unwanted sexual advances/touching and groping. Further, the report also showed nine murders in 2019 and 10 in 2017, which accounted for driver and passenger deaths. Finally, the report also indicated that the company recorded close to 60 fatal crashes in 2018 and 49 in 2017.

Can Parties Circumvent the Statute of Limitations in Florida Personal Injury Cases?

Published on: November 19, 2019 | by Friedman, Rodman & Frank, P.A.

There are various procedural and evidentiary rules and regulations that Florida car accident victims must follow if they want to collect damages from an at-fault party. Before a court accepts a personal injury lawsuit, it will determine whether the claim falls within the statute of limitations. The statute of limitations is the amount of time that a person has to bring a legal cause of action against another party or entity. This is arguably the most critical step of a personal injury lawsuit, because an otherwise meritorious claim may face dismissal if the statute of limitations has expired.

Generally, the statute of limitations begins to run from either the date of the incident or the date the injury was discovered (or should have been discovered). There are certain exceptions to the statute of limitations or arguments that a party can make to argue that the statute does not yet bar their claim. Florida courts understand that there are circumstances that may hinder a plaintiff’s ability to file a lawsuit within the statute of limitations. For example, historically, Florida courts have permitted plaintiffs to file a lawsuit past the statute of limitations if the plaintiff was deemed incompetent for some time, if they were a minor, or if the defendant fled the state. However, absent a unique and unusual circumstance, the courts will dismiss a claim that is past the statute of limitations.

In some instances, a defendant may claim that the parties agreed to shorten or lengthen the statute of limitations. For example, a state appellate court recently issued an opinion addressing the validity of a contractual agreement that reduced the statute of limitations. In that premises liability claim between a tenant and landlord, the landlord argued that the parties agreed that any legal claim against the landlord must be filed within one year of the incident. The landlord moved to dismiss the case because the complaint was filed two years after the woman suffered injuries. In that state, claims of this sort generally must be commenced within two years of the injury, but parties can agree to modify the statute of limitations.

The Collateral Source Rule in Florida

Published on: October 10, 2019 | by Friedman, Rodman & Frank, P.A.

Florida personal injury cases can be complex, particularly when it comes to proving damages in cases where bills were already paid through another source. In a recent case before a state supreme court, the court considered whether to admit evidence of the original medical bill amount versus the amount actually paid for the services rendered.

According to the court’s opinion, the plaintiff was injured when she slipped and fell on ice at a hotel parking lot. She fractured her wrist and her leg and had to undergo surgery. The hospital billed her more than $135,000, but her medical expenses were paid by Medicare. Medicare paid the providers’ bills by paying around $24,000, at a rate of less than one-fifth of the amount the plaintiff was billed. The plaintiff later sued the hotel for negligence. The hotel argued that the plaintiff could not show her original medical bills as evidence of her damages, and argued that only the amount that Medicaid paid could be admitted as evidence.

The issues before the Alaska Supreme Court were whether the evidence should be limited to the amount paid or whether the amount billed was relevant in assessing the plaintiff’s damages, and whether the difference in amounts was a benefit from a collateral source. The court decided that the original amount billed was relevant as evidence of the value of the medical services. The court considered different approaches and decided that evidence of the amount billed was relevant.

How the Doctrine of Negligence Per Se Helps Florida Accident Victims Prove Their Claims

Published on: July 18, 2019 | by Friedman, Rodman & Frank, P.A.

In most Florida personal injury cases, the plaintiff must establish that the defendant violated a duty of care that was owed to the plaintiff, and that the defendant’s breach of this duty resulted in the plaintiff’s injuries. However, in some situations, Florida accident victims can utilize the doctrine of negligence per se to prove the first two elements of a negligence claim: duty and breach.

Negligence per se is a legal doctrine that results in a legal finding that the defendant acted negligently. For negligence per se to apply, a plaintiff must present evidence that the defendant violated a regulation, law, or statute that was passed to protect people in the plaintiff’s position. If a plaintiff is able to establish that negligence per se applies, the plaintiff must only prove that the defendant’s actions were the cause of their injuries. A recent state appellate decision illustrates a situation in which the court determined negligence per se applied.

The court explained the facts as follows: the plaintiff was driving when she looked up to see a mattress flying towards her car. The plaintiff tried to avoid the mattress, but in so doing crashed into a cement barrier. Witnesses to the accident were able to obtain the other vehicle’s license plate number, and police officers eventually caught up with that driver, who was towing a trailer.

Comparative Negligence in Florida Personal Injury Cases

Published on: June 13, 2019 | by Friedman, Rodman & Frank, P.A.

One of the most important legal doctrines that all accident victims should understand is the concept of comparative fault. While some Florida personal injury accidents are solely the fault of one party, many accidents involve a situation where the parties share responsibility for that accident. The doctrine of comparative fault determines which parties involved in an accident can recover for their injuries.

Under Florida Statutes section 768.81, any “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” This means that an accident victim’s negligence will be considered by the jury, and will be used to reduce the victim’s overall recovery amount, but will not completely prevent them from recovering for their injuries from any at-fault parties.

While some states prohibit an accident victim who is more than 50% at fault from pursuing a claim, Florida law employs the “pure” comparative negligence model, meaning a plaintiff can bring a claim even if they are found to be more than 50% at fault. For example, assume a Florida car accident victim is found to be 30% liable for causing the collision, and the only other driver involved is determined to be 70% at fault. If the plaintiff’s damages were $500,000, then the plaintiff would be entitled to recover $500,000 less 30%, or $350,000.

Court Reverses Jury’s Zero-Dollar Award for Past Non-Economic Damages in Recent Florida Car Accident Case

Published on: June 11, 2019 | by Friedman, Rodman & Frank, P.A.

While juries can determine the appropriate amount of compensation to award a plaintiff, a jury’s award must be consistent. On May 29, 2019, a state appellate court issued an opinion in a Florida car accident case holding that the jury’s zero-dollar award for the plaintiff’s claim of past non-economic damages was legally insufficient because it was inconsistent with the jury’s determination that the plaintiff suffered injuries that required medical treatment.

According to the court’s opinion, the plaintiff was stopped at a red light when he was struck by another car. Evidently, the defendant made an illegal left turn into the intersection and hit a vehicle that then struck the plaintiff’s car. The plaintiff did not receive medical care at the scene and did not go to the hospital after the accident.

Nearly four years after the accident, the plaintiff filed a personal injury lawsuit against the driver of the car as well as the owner of the car. The plaintiff claimed that the driver was negligent in causing the accident and that the owner of the vehicle was negligent in entrusting her vehicle to the driver. The defendant acknowledged that the defendant driver was responsible for causing the accident, and so the trial proceeded only on the issue of damages.