South Florida Personal Injury Lawyers Blog

One-time Change of Physician Rule in Florida

Published on: March 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, you do not have the right to pick your doctor if you file a workers’ compensation claim. Most of the time the insurance carrier picks the doctor. Florida Statutes Section 440.13(2)(f) gives a worker the opportunity to change a physician once during the course of treatment for a work-related injury.

Once the change is granted and the employer or carrier notifies him or her, the original physician loses authority. The carrier must then authorize an alternative physician not professionally affiliated with the earlier physician within 5 calendar days after receiving the worker’s request. The worker can select the physician if the carrier doesn’t provide the name of the new physician.

Usually attorneys do not recommend that an injured worker change doctors during the early, occupational clinic stage. If you choose to change doctors at that time, you cannot again change doctors at the more important specialist stage. The second physician after your one-time change stays the doctor on the case unless the claimant moves or the initial treating physician no longer takes workers’ compensation cases or withdraws from the case for another reason.

Retroactive Application of a Statute in Florida Slip and Fall

Published on: March 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A recent case arose from a slip and fall that happened in a mall in 2008. The plaintiff had gone to the mall to buy clothes. The owner of the mall had contracted with a company to clean the mall. The plaintiff slipped on clear slippery material on the floor. She suffered injuries and had to seek medical treatment.

In 2010, she sued the owner of the mall and the cleaning company for negligence. She alleged they should have warned her, should not have let the spill remain on the ground and should have had a clean up plan to make sure spills didn’t stay on the floor. Before trial, the defendants moved for a ruling that section 768.0755, Florida Statutes (2010), applied retroactively and would control the trial. The court denied the motion, and decided that the 2008 version of the statute would be operative.

During the trial’s voir dire, the trial court asked prospective jurors who had participated in a trial or had a family member who had been involved in a trial, other than a divorce. Four jurors answered that they hadn’t been involved in a trial previously. After the plaintiff’s presentation, the defendant moved for a directed verdict. They argued that the motion for directed verdict should have been granted because the plaintiff failed to show their actual or constructive knowledge of the spill or even that they’d breached the standard of care under 768.0710 or 768.0755.

Confidential Settlements in Florida

Published on: March 4, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida plaintiff’s daughter posted a status update on her father’s settlement. It proved to be a terrible error in judgment. The father had been a headmaster whose contract was not renewed. He sued his former employer in federal court and won an $80,000 settlement. The agreement included a confidentiality clause. It prohibited both the plaintiff and the school from talking about the case.

His daughter, however, bragged about the settlement on Facebook to 1200 friends, noting it would pay for her vacation to Europe and telling the school to “suck it.” A number of the friends were former classmates at the prep school, which she had attended. When the school’s lawyers found out, they stated they wouldn’t pay. The plaintiff filed a motion to enforcement the settlement. In his view, his daughter was retaliated against and was a part of what was happening. She had known about the mediation and he felt he had to share what had happened with her. He won the motion to enforce in Circuit Court, but the school appealed.

The Third District Court of Appeal for the state of Florida found for the school and reversed the Circuit Court, throwing out the $80,000 settlement. The court explained that the daughter had done exactly what the agreement was supposed to prevent.

Doctors’ Duty to Prevent Suicide in Florida

Published on: February 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered whether a medical malpractice case was appropriate in the case of a suicide where the woman was being treated for depression. The woman’s husband brought the lawsuit.

The woman had a history of depression and was taking Prozac before she was switched to Effexor. The doctor was not aware that the woman had stopped taking the Effexor because of its side effects. She had called her doctor and spoken to his assistant in 2008. She told the assistant she didn’t feel right, wasn’t sleeping well, and was experiencing gastrointestinal distress. She thought it was the Effexor. The assistant wrote this information down in a note to the doctor.

When the doctor saw the note soon after, he decided to change the medication to Lexapro and referred her to a gastroenterologist. The office didn’t ask her to schedule an appointment. The woman picked up samples and a prescription on the same day. The next day she hung herself, leaving no suicide note.

Do Parents Have a Duty to Protect Relatives From Their Violent Son?

Published on: February 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered a tragic shooting incident whereby a couple’s 35-year-old son Paul shot and killed his family members at Thanksgiving. Sixteen family members were in attendance. The couple attended every year, but their son didn’t. In fact, the year before, the host had told the couple he would cancel dinner if they brought Paul.

The reason for this statement was because Paul had a history of violence. He was showing signs of aggression and chronic violence in his early 20s. He threatened his immediate and extended family. Two years later he was deemed legally disabled.

He lived with his parents from 1994-2006. During that time, the police were called 10 times based on his threats of violence and refusal to take his prescribed psychotropic medication. He was involuntarily committed at one point and at another, shot himself in the chest. Paul had a grudge against his uncle and sisters. He was violent towards his sisters and she had once gotten a restraining order against him. In spite of his issues with threats and firearms, the couple didn’t do anything to prevent him from buying firearms with money they gave him.

What is “Judicial Estoppel” in Florida?

Published on: February 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Judicial estoppel in Florida may be found where a party has previously maintained an inconsistent claim or position as a preliminary matter or part of a final disposition in a judicial proceeding. A party is “estopped” from maintaining the later inconsistent position. In a recent case, a Florida husband and wife appealed a final summary judgment against them, granted on the basis of judicial estoppel.

Their case arose from personal injuries experienced by the husband in his work as a condominium security guard. In 2008, a ladder being used by DirectTV fell on him. A few months later the couple consulted a firm that agreed to take their personal injury case. The law firm sent a letter to the condominium’s insurance carrier summarizing the husband’s case.

Later the couple filed for Chapter 13 bankruptcy (in which debts must be repaid according to a plan). The lawsuit was not listed on the portion of the bankruptcy petition for contingent claims. A few months later, the court approved the couple’s debt repayment plan.

Is Failing to Report a Prior Accident Fraud Upon the Court in Florida?

Published on: February 18, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered a personal injury case in which it was alleged the plaintiff had committed a fraud upon the court. The plaintiff had sued the defendant after a car crash in January 2010, claiming injuries to his neck and back. He had a laser surgery in his lower back late that year.

During discovery, the defendant had propounded discovery requests upon the plaintiff, including an interrogatory that asked him to list and describe in detail all prior car accidents, slip and falls, and workers’ compensation claims he had reported over the past decade. Among other things the plaintiff had to provide a disability rating and explain what part of the body this applied to. The plaintiff answered none to this interrogatory.

A request for production to the plaintiff sought copies of his medical records and other related treatment reports. One document produced by the plaintiff was a treatment note regarding his visit on the date of a crash; the noted stated the plaintiff had one prior accident with no injuries claimed.

Negligence and Strict Liability in Florida Roll-Over Crash Case

Published on: February 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Roll-over cases in Florida involving both negligent driving and product defects can be complex and challenging because different standards apply to different aspects of the case. In a 2012 case, a woman tried to recover damages for injuries she suffered in a car accident. She had been hurt in a roll-over crash while driving her boyfriend’s Ford Explorer.

The woman sued Ford for strict liability, negligence, and associated claims of defects, including negligent design of the suspension system. She alleged that the suspension system was designed so that it would roll over with a sudden lane change, and that its roof and safety systems didn’t offer proper protection.

Ford defended itself by arguing that the plaintiff was negligent in how she drove. It moved for summary judgment on that basis. The evidence attached to the moving and opposing papers were limited. Ford argued that the plaintiff was legally intoxicated at the time of the accident and that was why she was hurt. It also argued she didn’t present expert testimony on the issue of defects.

Applicability of Maritime Law to Florida Boat Accident

Published on: February 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Boating for recreation is common in Florida. If an accident arises while boating, what law applies? Whether maritime law applies depends upon the body of water involved. In a 2009 case a personal representative of a decedent’s estate brought a lawsuit for personal injuries sustained by the decedent in a boat accident. The case arose when Jeffrey Briggs rented a boat from a lighthouse marina after drinking alcohol. His mother and father were boat passengers.

Two or three hours after they started boating, Jeffrey hit the wake from a larger boat. His mother flew into the air and broke her back on the floor of the boat. She had to be in a body cast for 8 months after the accident. Almost four years after the accident, she sued her son, the company that rented him the boat, and the boat’s manufacturer. In an amendment to the complaint, she alleged that the company had negligently entrusted the boat to her son and claimed breach of contract against her son.

The defendant filed for summary judgment. Initially they were denied, but they were filed again after discovery. The defendants argued that the woman’s claims were barred by a three-year statute of limitations for torts under maritime law. The trial court granted summary judgment, finding that the incident happened in navigable waters and bore a substantial relationship to maritime activity. Since it had been filed four years after the accident, the plaintiff’s action was barred.

Workers’ Compensation Immunity in Questionable Florida Employment Situation

Published on: February 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed form summary judgment entered in favor of a general contractor for whom her husband had worked. The case arose when the general contractor was managing a project at a processing plant in Miami. A plumbing company and its supplier was also on the job. A plumbing supply deliveryman delivered a steel pipe there one day in 2008.

At the site, a plumbing employee told him to take the steel pipe upstairs. He took it up to the second level. As he was walking back toward the lift, he stepped on a false ceiling and fell twenty feet to the ground. The deliveryman was left in a persistent vegetative state. His wife was appointed his guardian and sued the construction company and the plumbing company for negligence and loss of consortium.

Before she filed the lawsuit, the wife received workers’ compensation benefits from the workers’ compensation insurer for the plumbing company and the supplier. All defendants asserted workers’ compensation immunity. In Florida, workers’ compensation is the exclusive remedy for employees hurt on the job. This means employers are immune from lawsuit by their employees based in tort.