South Florida Personal Injury Lawyers Blog

Amending a Medical Negligence Complaint in Florida

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

In a recent case, a mother sued several medical professionals both on behalf of herself and her deceased 21-year-old daughter’s estate. She alleged that the medical professionals were negligent after her daughter died of MRSA lobular necrotizing pneumonia.

The defendants filed a motion asking the lower court to take judicial notice of a circuit court’s shelter orders in which there was found probable cause to remove the deceased’s children’s from her care. The shelter orders also found abuse of alcohol and drugs, failure to submit to drug testing and domestic violence. The mother objected on the grounds that the orders included inadmissible hearsay and character evidence.

The medical professionals argued that the daughter’s system had been affected by alcohol and hydrocodone that combined with the pneumonia to impair her breathing ability and resulted in death. At trial, its expert witness testified that she died of pneumonia complicated by aspiration and intoxication.

Statute of Repose in Florida Tobacco Personal Injury Cases

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

What is a “statute of repose?” In Florida, a statute of repose creates strict time limitations for a claimant to bring a claim against defendants. The right to bring that claim can be completely extinguished after a specific period based on the statute of repose. The limitation runs from the date of a discrete act by the defendant regardless of when the actual cause of action accrues. This is different than a statute of limitations period that starts to run only after a cause of action accrues.

Tobacco companies sued for concealment can use a statute of repose defense. This defense allows it to argue that a plaintiff’s claims are barred where the plaintiff has not relied upon statements made by the defendant after May 5, 1982. In any case that is considered the progeny of Engle, Florida’s 12-year statute of repose as to fraud-related claims is measured from the date of the original Engle complaint. Engle was a class action that was later decertified creating thousands of “progeny” cases. Plaintiffs in the progeny cases can use the Engle jury’s findings that tobacco companies lied about dangers of smoking.

In a recent reconsideration of an earlier ruling in an Engle progeny case, a Florida District Court of Appeals ruled on an appeal of a plaintiff verdict in a personal injury and wrongful death (smoking) claim against R.J. Reynolds Tobacco Company.

Medical Negligence on Cruise Ships That Depart From Florida

Published on: December 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s large tourism industry gives rise to interesting legal questions regarding personal jurisdiction over cruise line defendants who have been negligent. Personal jurisdiction refers to whether the court has power over the parties in a particular lawsuit. If a court does not have personal jurisdiction, its rulings and orders can’t be enforced upon that person or entity.

Can a defendant be held responsible in Florida courts if he or she simply works on a boat that departs from Florida? The answer to this question can impact ship doctors, as well as other ship personnel. A recent case illustrates the answer.

In the case, a couple took a seven-night cruise on a Royal Caribbean Cruise Line. She went to the ship’s doctor as the boat neared Haiti for treatment of serious abdominal pain. The ship’s nurse and doctor saw her. She was treated for gastritis, but she worsened. She got off the ship in Mexico and went to the hospital where she got an abdominal surgery. She was treated for sepsis and multiple organ failure. She also experienced a cerebral hemorrhage.

Injuries Arising From Bar Brawls in Florida

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

In a recent case, a woman sued a Florida cafe to recover compensation for personal injuries she suffered when she was attacked inside a popular restaurant and bar near the beach. On the night she was attacked, she had come to the restaurant to give her roommate (a bartender) a ride.

A family of Irish tourists had been drinking heavily. They were rowdy. A manager, the woman’s friend, and her roommate were also present. Before the fight the woman’s friend exchanged words with the tourists. The manager left the roommate to manage the altercation. She was shoved. The woman and her friend also started fighting. She was badly beaten by the time the police got there.

The tourists were arrested, but jumped bail and left the country. The woman sued the restaurant and bar on the grounds that it had notice that its patrons had a tendency to become violent and should have had better security.

Security Guard Negligence in Florida

Published on: December 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Interesting questions are presented in cases in which a security guard is negligent, leading to personal injuries or even death. Is the guard responsible for intentional misconduct by another person? In a recent case, a woman was murdered at her home in a gated community by a burglar. The community was a six-street neighborhood that was surrounded by a golf course and a lake. Guards were stationed there 24-hours a day. While one guard stayed at the guardhouse, the other moved around the property in a vehicle.

At the time of the murder, the patrolling guard was supposed to be continuously patrolling, checking into various checkpoints to show he was patrolling appropriately. The police caught the murderer. In his sworn confession, he said he had entered the community by bicycle on an open pedestrian path. He didn’t know the victim before that night. He saw there was a small open window and cut the screen from that window. Although the screen had security wires, the alarm company had improperly installed the alarm, so the alarm didn’t go off.

The murderer was stealing credit cards and other things, and ran into the victim. He strangled her. The estate and the alarm company settled. At trial, the estate proceeded against the security service. The estate’s expert testified that “continuously” meant that the guard should have been moving continually. The guard had failed to do that based on data from the checkpoints.

Plaintiff’s Negligence in Florida Personal Injury

Published on: December 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens when an accident is partly your fault? Plaintiffs whose injuries are the result of both their own negligence and other peoples’ negligence may have their damages reduced in proportion to their own fault.

In a recent case, a plaintiff was found to be 90% negligent for not wearing a seatbelt. Accordingly, the jury awarded her much less than the amount of medical expenses she claimed. On appeal she argued that the trial court had abused its discretion by, among other things, allowing her physician to be cross-examined as to irrelevant matters.

The accident at issue happened when the defendant was driving the plaintiff home. He had a seizure and drove over curbs, hit a tree, and crashed into a house. The plaintiff’s neck was broken and she had to have surgery. Her attorney sent her to a pain management specialist and later to a neurosurgeon for another surgery.

At trial, the jury considered whether the accident resulted from the defendant’s seizure, which was part of a medical condition of which he wasn’t aware. It also considered whether her failure to wear a seatbelt increased her injuries. It also considered how reasonable her past and future treatments were.

Release of Liability in Florida Personal Injury Cases

Published on: November 27, 2013 | by Friedman Rodman Frank & Estrada, P.A.

It is important to read liability releases before signing them. However, even people who do read releases may have trouble figuring out what they’re signing. A serious ambiguity in a release may make it unenforceable. On the other hand, other factors may prevent recover, as they did in a recent case involving a release. The case arose when a college football player performed conditioning drills at football practice and immediately thereafter collapsed and died. His parents sued the college and its athletics association for negligence.

A jury found the association liable after a three-week trial, awarding the parents $10 million. The association appealed. It argued that the trial court had denied its motion for summary judgment in error. The motion was brought on the basis of a release in a signed medical examination and authorization waiver and also on the basis of limited sovereign immunity.

The appellate court explained that the only issues were whether the Medical Examination and Authorization Waiver removed liability and whether section 768.28(2) and (5) gave it limited sovereign immunity.

With respect to the release, the court explained that the athletics association required players to acknowledge and represent their physical condition, drug use and use of supplements in the waiver at issue. Part of that waiver included an “Agreement to Participate” that specified the player was aware of the many risks of injury that accompany playing sports. It stated the player would assume all risks and exonerate, save harmless and release the association. It also covered claims by the players’ heirs and family.

Striking a Juror for Cause in Florida Personal Injury Cases

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

Personal injury victims in Florida are entitled to jury trials. In a recent case, a plaintiff appealed because the trial court denied her challenge to a jury for cause. Also at issue was the trial court’s refusal to permit her to tell the jury about her Social Security disability status even though the defense attorney had brought it up.

The case arose from a car accident that happened in 2008. The defendant admitted fault. At the start of trial, a jury is empaneled. Before empanelment, the lawyers and the judge conduct what is called “voir dire.” During voir dire, the attorneys and the judge ask question to find out whether the prospective jurors can be impartial.

In this case, the plaintiff’s attorney asked jurors how they felt about noneconomic damages. These are damages like pain and suffering or loss of enjoyment of life. One juror answered that she didn’t like noneconomic damages, but she could follow the law. She explained she was a worker’s compensation and general liability risk manager and she viewed those kinds of damages as punitive.

Can a Defendant’s Educational Failures Be Used in Florida Medical Negligence Cases

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

Medical malpractice cases can turn on expert testimony. What other kinds of evidence may be used to show a doctor is negligent? A doctor’s history of educational difficulties and failures are typically inadmissible to prove negligence. In a recent case, the plaintiff was referred to a doctor after she told her primary care physician about cramping, pain and bleeding. The doctor found she needed a hysterectomy and performed one. She came back to the hospital five days later complaining of pain and discomfort. Her ureter was blocked, but there was too much inflammation to perform an immediate surgery.

The plaintiff was required to wear a nephrostomy tube for three months, during which she had diarrhea, nausea and vomiting. Her ureter was repaired, but she still suffered pain at the time of trial and wet herself every night.

She sued the doctor and his employer for medical malpractice. During the trial, nobody disputed that the ureter injury was caused by the hysterectomy. The issue was whether the doctor was negligent not to check the integrity of the ureter after the operation.

Florida School Not Liable for Personal Injuries After School Hours

Published on: November 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case an appellate court reviewed a high school’s liability in the death of a student and catastrophic injury of another after consuming excessive alcohol at a private home.

The case arose when students received copies of a somewhat unintelligible invitation to an end-of-the-year party at a home that was miles away from school. The invitation specified it was for students from that high school only.

The cards had nothing to do with the school, although they referenced it. The morning before the party the principal questioned the two students throwing the party. They told him their parents would at the party. The principal also read an announcement to the student body that implied it might squelch the party.