South Florida Personal Injury Lawyers Blog

When Can a Plaintiff Ask for A New Trial in Florida?

Published on: July 26, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under certain circumstances, after a trial, a personal injury plaintiff may make a motion for a new trial, sometimes focusing on a new trial for a specific issue in the original trial. One reason for a new trial is a trial judge’s finding that the verdict rendered by the jury is contrary to the evidence put forward at trial. This means that the judge believes there is no way a reasonable jury could have concluded as it did.

In a recent case, a plaintiff was awarded past and future medical damages, as well as past and future pain and suffering by a jury. The defendants did not contest liability for the car accident. They didn’t contest that the plaintiff’s first surgery arose because of the injuries from the car accident. At trial, the issues were whether the costs of the first surgery were reasonable and whether another surgery years later was also the result of the car accident. The parties disagreed as to why the later surgery arose. They presented conflicting evidence at trial on these issues and had different expectations about what factual findings the jury would make.

Rear-Ending Vehicle Accidents in Florida

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

In Florida, there is a rebuttable presumption that the rear driver caused a rear-ending car accident–that the rear driver’s negligence was the sole proximate cause of a collision. When this rule was put in place, Florida was a contributory negligence state. That meant that when a plaintiff was at all at fault, the defendant could use the plaintiff’s negligence to show he or she should not recover any damages, even when the plaintiff was only slightly at fault.

Last year, the Florida Supreme court decided a rear-ending car accident case that clarified what the rear end presumption means today when contributory negligence is no longer a bar against a plaintiff’s recovery of damages in an auto accident. In that case, a motorcycle passenger was injured when the motorcycle driver unsuccessfully tried to avoid crashing into the rear end of the defendant’s car. The car was driving 35 miles per hour down the road when he unexpectedly slammed on his brakes for no observable reason.

What is Florida Courts’ “Stuart instruction?”

Published on: July 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As if getting into a car accident and suffering serious injuries weren’t bad enough, some people in Florida find that they are further injured when they go to the hospital to treat their injuries from a car accident. In some cases, the original person or people who caused the accident and injuries are also held responsible for any harm that results when a physician improperly treats the injuries.

In such cases, an attorney may call for a “Stuart instruction,” so called because it comes from the 1977 case Stuart v. Hertz Corporation. This instruction tells the jury that “a tortfeasor is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries.”

A recent appellate case illustrates some of the complications that occur with this rule. In that case, a woman’s vehicle was rear-ended by a male driver. She drove to the hospital complaining of neck and back pain and was diagnosed with whiplash. Although she got follow-up care, the woman still had pain four months later and asked an orthopedic surgeon for his opinion. He diagnosed a muscular injury and disc herniation from the accident and recommended she have a surgery.

What is “Forum Non Conveniens” in Florida?

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

Under Florida common law, a lawsuit that does not have much connection to Florida may be subject to “forum non conveniens,” which is Latin for “inconvenient forum.” It comes up only after a plaintiff is able to effect service of process of a lawsuit on a defendant who is present in Florida or has its principal place of business there or because the defendant has committed a tort in Florida.

Some plaintiffs “shop” for the best jurisdiction in which to sue the defendant–usually they pick the jurisdiction with laws that favor their side of the case. This problem can be fixed through the application of the forum non conveniens.

Forum non conveniens is a doctrine that addresses the problem of a local court having jurisdiction over a suit when the case could be fairly and more conveniently litigated in another jurisdiction. Since Florida tends to have better laws for plaintiffs than some overseas jurisdictions, the plaintiff practice of forum-shopping is particularly notable here.

Proving Wage Loss in Florida Personal Injury Cases

Published on: July 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Unfortunately, accidents on the road, whether you’re in a car, scooter, truck or walking around as a pedestrian, are all too common on Florida’s busy streets. One common kind of loss you might experience after a serious accident in which you are injured is lost wages. After an accident you may have to take time off from work to rest and recuperate. In severe accidents, you may be left with a temporary or permanent disability.

In Florida personal injury lawsuits, courts use a standard of reasonable certainty when looking at the facts of injury and causation. This is considered more critical than having reasonable certainty about specific losses arising from the injury.

While you don’t need hard, documentary evidence or file income tax returns to prove every earning with absolute certainty, it’s important to keep records. If you get into an accident, you should file your receipts, tax returns, and doctor’s notes into an earmarked file and turn them over to your personal injury lawyer. Similarly, if you have to see a vocational rehabilitation counselor, save any written notes or information that person gives you, in case it becomes relevant to your case.

In a recent case, an appellate court explained that the jury can make decisions regarding wage loss on the basis of credible testimony. The case arose when a man on his scooter traveled over a part of the pavement that was being resurfaced by a paving contractor and hit a manhole pipe.

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.

What is Proximate Cause in a Florida Medical Malpractice Case?

Published on: July 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida require a plaintiff to prove (1) the standard of care owed by the health care professional, (2) the health care professional’s breach of that standard, and (3) that the breach “proximately caused” the damages claimed. “Proximate cause” in Florida means that the negligence more likely than not caused the injury. It isn’t sufficient to show that what was done or not done by a health care professional probably affected the outcome. Usually an expert doctor must testify on this point.

In a recent case, a seventeen-year-old boy diagnosed with aortic stenosis collapsed during a preseason baseball workout. Aortic stenosis is a heart condition in which the aortic valve ‘narrows’ and the heart has a reduced ability to pump blood, which puts the person suffering from the condition at an increased risk for a heart attack.

Prior to his death, the boy was cared for by a pediatric cardiologist who saw him every year to administer stress tests and echocardiograms. The doctor agreed that the boy could play baseball but not contact sports. In 2001, the doctor told the boy he would need a stress test before starting the 2002 baseball season. The stress test was not performed before the new season.

Florida Court Finds Workers’ Compensation Immunity in an Amputation Case

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

In Florida, workers’ compensation is the exclusive remedy an employee has against an employer when he gets hurt in the course and scope of his job, except under very limited circumstances. Sometimes this can seem unfair when an accident is extremely severe. There is, however, an intentional tort exception to the rule favoring workers’ compensation.

In order to meet this exception, a plaintiff employee must demonstrate there is clear and convincing evidence on one of two points. The employee must prove either that the employer actually intended to injure the employee or else that the employer knew based on previous similar accidents or express warnings that there was a danger to the work condition and it was “virtually certain” to lead to injury or death to the employee. Not only that, but the plaintiff must show the employer hid this danger from the employee.

“Virtually certain” is a very tough standard that means that a plaintiff must demonstrate a particular danger will result in an accident every time or almost every time it comes into play. In a recent workers’ compensation immunity case, an employee’s hand was amputated by a piece of machinery he used at his workplace. At work, he made steel lockers. Machines were used to cut and bend the metal parts of the locker.

Personal Injury Accidents on Florida Cruise Ships

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

Florida is a popular destination for tourists who wish to go on a cruise. The last thing anyone wants to worry about while on vacation is getting into an accident while on the boat. However, accidents do happen on cruise ships.

Usually cruise ship attorneys are very experienced at defending personal injury actions. They know how to poke holes in a plaintiff’s case, maximize technical or procedural flaws in a plaintiff’s case and minimize their exposure in the lawsuit. Therefore, if you are hurt on a cruise ship because of a condition on the cruise ship that is not your fault it is important to retain an experienced personal injury attorney to prosecute this type of case. An attorney experienced at representing plaintiffs can try to make sure you receive any compensation to which you may be entitled.

Recently, an appellate court considered an argument that the Carnival Cruise Line’s defense attorney made improper comments at a personal injury trial. The case arose when a woman took a Carnival cruise in order to go to her nephew’s wedding. She slipped and fell on something oily on the ship’s floor by the buffet while the ship was docked in Tampa. She was taken to Tampa General Hospital and treated for contusions to her right hip, right knee and back strain.

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.