Wrongful Death

Settlement Offers in Florida

Published on: September 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Often plaintiffs must work towards settlement not only with a defense attorney, but also an insurer. One strategic area during a lawsuit is settlement offers. There can be an advantage to trying to settle early. However, offers must be extremely specific. This is why it is critical to secure the help of an experienced attorney before communicating with the insurer for the other side.

In a recent case, a defendant appealed the final judgment entered in favor of a wrongful death plaintiff. The plaintiff and her minor child were in a car when they were rear-ended by the defendant’s car. The impact pushed the plaintiff’s car into a moving train. This caused severe injuries to the plaintiff and killed her son.

The plaintiff’s attorney contacted the defendant’s insurer and offered to settle with the policy limits. The offer had a time limit for accepting and included a reference to restrictions on the nature of the release. The insurer responded to the offer, including some draft checks and proposed releases. The plaintiff’s attorney told the insurer that the releases violated the terms of the offer and that it would therefore consider the response a rejection and counteroffer.

Work that Creates Exceptional Risk and Causes Death in Florida

Published on: September 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Usually a Florida landowner or an employer of an independent contractor is not liable for negligent acts of the independent contractor. There are exceptions, among them an exception for work that creates exceptional risks.

In a wrongful death case earlier this year, a large tractor was moving along the interstate in the fast lane at less than 30 miles per hour in the dark. A driver was one of several cars in a group driving close together in the fast lane. The fourth or fifth car of the group was a state trooper. The trooper observed that the first car hit the brakes and a pickup pushed the second or third car into the right lane.

This second or third car was a car operated by a man named Smyth. He crashed into a tank truck carrying fuel–the driver of the truck didn’t realize Smyth had hit him and traveled with the car. The fuel tank caught fire and Smyth died.

Florida Appellate Court Finds No Fraud Upon the Court in Wrongful Death Case

Published on: July 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Egregious conduct during a Florida personal injury or medical malpractice lawsuit can lead to the court dismissing a case with prejudice. This is an extreme measure that means a plaintiff cannot come back and have a jury hear his or her case.

What is egregious conduct? One example is extreme dishonesty — conscious dishonesty so serious it threatens to subvert the system. When you have suffered a great loss, such as the death of a spouse or child, it can be difficult to remember everything that needs to be remembered for legal proceedings. Nonetheless, it is important to be as honest as you can during the entire process.

In a recent case, a Florida appellate court considered facts in which a defendant hospital asked the plaintiff for notes or diaries related to his lawsuit against the hospital and doctors for his wife’s wrongful death. In that case, the plaintiff’s husband maintained a diary about his wife’s medical condition from March 1997-July 1997, but didn’t turn it over to the other side.

Important Florida Supreme Court Ruling on Arbitration Agreements for Medical Malpractice

Published on: June 25, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Many Florida health care providers ask patients to sign arbitration agreements before they are treated. These agreements keep medical malpractice cases from going before a jury.

A medical malpractice cause of action in Florida is controlled by Chapter 766 of the Florida Statutes, the Medical Malpractice Act (MMA). The MMA specifically states that after the pre-suit and investigation requirements are fulfilled, either party may ask the others to submit to voluntary binding arbitration.

Assuming the claimant offers and the defendant agrees, the statute caps damages that may be awarded at arbitration to $250,000 for non-economic damages, calculated in terms of percentage of ability to enjoy life. (Non-economic damages include pain and suffering, but do not include actual medical expenses). The defendant is required to concede liability in this scenario.

However, if a defendant does not agree to voluntary binding arbitration in a case where the claimant has died, the cap on non-economic damages is $1 million at trial. And if a claimant does not agree to voluntary binding arbitration requested by the defendant and elects to go to trial, non-economic damages are capped at $350,000.

Recently, an important Florida Supreme Court case interpreted the law in a way that should help many medical malpractice plaintiffs. The case arose when a 67-year-old man suffered a hematoma during hernia surgery when one of his veins was lacerated and later died. His wife filed an action against the surgeon and the surgical group who operated on him, suing for medical malpractice leading to wrongful death.

The surgeon and his group made a motion to compel arbitration in accord with an agreement signed by the deceased before his surgery. This agreement not only bound him and his estate to arbitration, but it also capped his non-economic damages in case of medical malpractice to $250,000 per incident. The agreement also stated that a patient who wished to complain had to follow the standard procedure of serving a pre-suit notice.

The trial court ordered arbitration. The decedent’s wife appealed, argued that the arbitration agreement violated public policy as articulated in the MMA. Nonetheless, the First District Court of Appeal affirmed the trial court’s decision. The decedent’s wife appealed to the Florida Supreme Court.

Florida Supreme Court Clarifies Wrongful Death Act

Published on: June 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens if a plaintiff’s injuries are so severe, he or she dies during the course of a lawsuit? Does the case get dismissed? Can a spouse or other relative be substituted in as plaintiff? The Florida Supreme Court recently discussed this important issue as it related to a personal injury case filed against a tobacco manufacturer. In 2005, a couple sued the tobacco manufacturers Philip Morris and Brown and Williamson Tobacco Corporation. The basis for the suit was that the tobacco company’s products caused the husband to get lung cancer and other malignancies.

The husband died in 2006. The wife then filed a motion to amend the complaint to name additional defendants. She sought all damages available under the Florida Wrongful Death Act, but also claimed survival damages.

The tobacco manufacturer filed a motion to dismiss on the grounds that the Florida Wrongful Death Act does not allow a personal injury action to be converted into a wrongful death action. The tobacco manufacturer argued that the surviving wife had to file a new wrongful death action, rather than convert the existing lawsuit. Agreeing with the tobacco manufacturer, the circuit court denied the wife’s motion to amend and substitute and dismissed the action.

The wife then filed a motion to reconsider, arguing she was not converting a personal injury into a wrongful death suit. She explained that she was leaving open the possibility of an alternative claim for survival damages and that the different theories of recovery should be presented together in a single lawsuit.

What is Florida’s Dangerous Instrumentality Doctrine?

Published on: May 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Florida Supreme Court adopted the dangerous instrumentality doctrine in 1920. This doctrine provides: a vehicle owner (and others that own inherently dangerous tools) may be held vicariously liable when he or she consents to let someone drive his vehicle who operates it irresponsibly and causes damages. The doctrine is similar, but separate from, the doctrine of respondeat superior, which imposes liability upon a “principal” for negligent acts of his agent that occur during the course and scope of the agent’s employment.

Parents of minors in Florida must take particular note of the dangerous instrumentality doctrine. A parent who signs his or her minor’s application for a driver’s license may be held vicariously liable for the child’s negligent operation of a motor vehicle.

A Florida appellate court recently considered the question of whether application of the dangerous instrumentality doctrine means that a driver can be considered an agent of the car’s owner. This is less complicated than it may sound.

The question came up during a wrongful death lawsuit. A car crash killed both the driver of a vehicle and his passenger when the driver failed to stop at a red light. The passenger’s mother filed a lawsuit against the driver’s estate and the driver’s father, who owned the vehicle. The father was included in the lawsuit under the dangerous instrumentality doctrine.

Florida Appellate Court Rules Medical Malpractice Pre-Lawsuit Requirements Not Necessary in a Wrongful Death Action

Published on: May 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Fifth District Court of Appeal of Florida recently reviewed a trial court’s dismissal of a wrongful death action for plaintiff’s failure to comply with the pre-lawsuit requirements for medical malpractice cases. In medical malpractice cases, a plaintiff must meet certain requirements, such as investigating before filing suit and giving notice to prospective defendants before filing suit. This case ended well for the plaintiff. However, it is a good example of why it’s so important to hire a personal injury attorney with multiple areas of experience if a loved one is killed in connection with a health care provider or in a context that might give rise to a medical malpractice claim. The rules that must be followed in contexts that overlap multiple practice areas can be tricky to navigate on your own.

The facts giving rise to a lawsuit arose when a 25-year-old pregnant woman visited the hospital complaining of pain. The hospital moved her to the defendant, a behavioral health facility, that evening, but when she arrived she was still complaining of abdominal pain. She was in distress, but over the next two days, the facility acted (and failed to act) in ways that led to her death.

Arbitration Clauses in Florida Nursing Home Cases Binding Upon Heirs and Estate

Published on: April 16, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Florida recently decided Laizure v. Avant at Leesburg, a very important case for the many Florida residents whose elderly parents are in nursing homes. In that case, an elderly man died several days after he was admitted to a nursing home for rehabilitation after surgery. The day after he arrived at the facility, he signed an agreement requiring that conflicts resulting from his treatment and care at the nursing home be resolved through binding arbitration, rather than at trial.

His family brought a lawsuit in circuit court. Their complaint not only stated claims under a statute for deprivation of the man’s nursing home residents’ rights under a Florida statute, but also pled claims for wrongful death in the alternative.

The nursing home defendants filed a motion to compel arbitration based on the addendum signed by the man. The agreement specifically stated that it would be binding on the man’s heirs and it waived his right to trial by jury.

The man’s family opposed the motion for arbitration arguing that the arbitration agreement was unconscionable and that the wrongful death lawsuit was not arbitrable because the right to sue in such a claim didn’t belong to the man who had signed the agreement, but to them. The trial court disagreed.

Although it affirmed the trial court’s ruling, the Fifth District appellate court noted no Florida decision had addressed the question of whether a nursing home arbitration agreement could bind an estate or heirs for purposes of a wrongful death action. It looked at an earlier case in which the court had held that a wrongful death lawsuit is not an arbitrable case. In that case, arbitration of personal injury disputes wasn’t provided for in a homeowner’s purchase and sale contract. But the court concluded that the arbitration agreement in this case was broader; any wrongful death cause of action in this case would be based on the transformation of the man’s personal injury case for negligence into a wrongful death case.

Nationally Available Dietary Supplement with DMAA Under Scrutiny Following Military Deaths and FDA Warning

Published on: February 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Jack3d, which is sold at health stores in Florida and across the U.S., has been at the forefront of concern as one of several dietary supplements that contain dimethylamylamine, or DMAA. Several companies use the main ingredient DMAA in dietary supplements advertised to maximize your energy, concentration, and metabolism. Dietary supplements are not regulated by the Food and Drug Administration (F.D.A.) in the same manner as food or medications. Dietary supplements are required to only have “dietary ingredients” and must be shown to be safe before they are marketed.

In April 2012, the F.D.A. issued a warning letter to ten manufacturers and distributors stating that they failed to submit a notification that DMAA is being used in their product as a New Dietary Ingredient. 42 adverse event reports had been submitted to the agency with complaints ranging from cardiac to nervous system disorders. DMAA is known to narrow the blood vessel and arteries, raising blood pressure that causes shortness of breath to tightness in the chest to heart attack. Manufacturers of these dietary supplements still insist that their products are safe.

Following the F.D.A warning letters, Drug Testing and Analysis published the results of a study that showed the DMAA found in the dietary supplements was not from a natural source. On the list of ingredients, it is often listed as sourced from geranium, but the researchers found it was indistinguishable from the synthetic version of drug. This finding highlighted the long-running debate for greater regulatory oversight of supplements
The public spotlight has landed on the DMAA product Jack3d after two men in the armed services died after using their product. The Department of Defense went as far as removing all products containing DMAA for sale in stores on military bases. One soldier’s family has filed suit claiming that the companies deceptively marketed the product as safe for use and not warning consumers about the potential health risks.

The basis of the family’s complaint lines up with Florida’s punitive damages requirements, which can be available in wrongful death suits. In a wrongful death suit, the defendant party is held liable as the cause of the death. Those who qualify to sue may recover compensatory damages ranging from loss of wages to medical bills. To recover punitive damages, the defendant party must be found to have acted with gross negligence or intentional misconduct. A party can sue to recover up to two million dollars if they show that the defendant party was motivated by financial gain, and that the managing director, agent, or officer in charge of decision making was aware of the dangerous nature of the conduct.

Fatal South Florida Hit-and-Run Leaves Many Questions, Few Answers

Published on: January 30, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Miami Herald recounted a horrific accident that took the life of a Miami father, killed by a suspected drunk driver. One witness saw the victim being struck and thrown into the air, but still had the wherewithal to call the police AND follow the alleged offender’s car (despite attempts to throw the witness off). The victim’s family will never be the same as they grapple with the shock, horror, and grief from this tragic death.

Sudden loss of a loved one or witnessing a terrible death has an unimaginable impact on one’s life. No subsequent actions, including verdicts in the justice system, can ever replace a person or erase the event from history. Sometimes though, in the midst of a crisis, you need help to guide you through the bureaucratic and financial consequences of such a mired circumstance. Friedman, Rodman & Frank have aided others in their time of need, whether it was applying for social security benefit or making the other party take responsibility for the actions through a civil action.

4280 pedestrians were killed in 2010, according the National Highway Traffic Safety Administration. In Florida, between 2006-2010, 5,737 people died from an alcohol-related crash, and 15,635 were injured. The consistent number between 2006-2008 caused government officials to create the Florida Impaired Driving Coalition to examine what could be done to lower the number of injured and killed Floridians. They plan to reduce the 5-year average by 5% each year by improving DUI enforcement and prosecution, increasing DUI prevention training, and enhancing DUI impairment legislation.

With the rising accessibility of mobile devices, distracted driving has also become a concern for Florida’s Department of Transportation. The 2012 Strategic Highway Safety Plan chose to focus on distracted driving because 5,474 people were killed and 448,000 were injured as a result of distracted driving. A Georgia man was recently killed in Florida after he hit a distracted driver’s vehicle left in the middle of the highway. The distracted driver dropped her cell phone and attempted to pick it up, while driving. She flipped her car and exited the vehicle to call 911. The man hit her car, left his vehicle, and then was hit by an on-coming semi-truck.

While mobile phone use has been headline driving news, there are many other ways a driver can become distracted and cause an accident injury or death. Fatigue has been shown to be as large of an impairment as alcohol intoxication. Florida instituted the “Ronshay Dugans Act“, which dedicates the first week of September to educating law enforcement and the public about the hazards of driving while tired. Other educational programs and initiatives like “Put it Down” work to educate the public to change hazardous habits like texting while driving.