Wrongful Death

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.