South Florida Personal Injury Lawyers Blog

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.

Adopting a Careful Strategy in Florida Personal Injury Lawsuits

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

A recent case illustrates the importance of taking a strategic approach when bringing a lawsuit for personal injuries. It is critical to retain an attorney with the objectivity and good judgment, who can evaluate both the negative aspects of your case as well as the positive and take a more circumspect approach in the event that you have serious pre-existing conditions or other factors that could impact the jury’s verdict.

The plaintiffs in this case were driving when their car was rear-ended by the defendant. The plaintiffs were taken for medical evaluation and claimed to have injuries. They sued, but the trial did not go as they had hoped it would.

The defendants admitted negligence, but disputed that they had caused the injuries or owed any damages. They claimed that one of the plaintiffs had a history of serious pre-existing injuries that had triggered the need for medical treatment. They also presented evidence that the other defendant was witnessed laughing at the hospital after being admitted.

Do Rental Car Companies in Florida Have a Duty to Investigate?

Published on: November 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens if a rental car company rents a car to a driver who proves to drive negligent and hurts or kills someone? In a recent appellate case, a man was killed in Florida while riding in a 2008 Corvette that was rented from Hertz and driven by the defendant. A witness saw the defendant hit another vehicle after swerving through traffic at a high speed. When Hertz rented the man the car, it did not know that his driver’s license had been suspended after he received a speeding ticket in another state.

The man’s representative filed a wrongful death action against Hertz, alleging that it was negligent in not affirmatively investigating and learning of the suspended driver’s license pursuant to a statute. The trial court dismissed the complaint on the grounds that the Florida Statutes required Hertz to inspect the license to verify the signature and nothing more.

The man’s representative amended the complaint alleging general negligence rather than a statutory violation. However, the representative still wanted to use the statutory violation as evidence of proximate causation. In a general negligence action, a plaintiff must show (1) a duty, (2) breach of that duty, (3) actual causation, (4) proximate causation and (5) damages. “Proximate causation” means “legal cause.” Something may be part of a chain of events that leads to an accident, but still not be the “legal cause” or “proximate cause” of an accident.

When Are Damages Excessive or Inadequate in Florida Personal Injury Trials?

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

A Florida jury may not award greater damages than what is supported by the evidence presented at trial. Under Section 768.043(2), trial courts must consider several factors in trying to determine whether damages awarded by the jury are excessive or inadequate after a trial.

These factors include consideration of:

• whether the award is motivated by prejudice or corruption,
• whether the trier of fact obviously ignored the evidence,
• whether the trier of fact considered improper elements into account or speculated,
• whether the amount awarded is reasonably related to the injury suffered,
• whether a reasonable person would logically see the evidence supports the award.

In a recent case, a plaintiff sued an amusement park after getting shot by a third party while leaving the park. While the jury was deliberating, it asked to look at the present and future value tables for the plaintiff’s medical expenses. An economist had prepared the future medical expenses table based on a report by the plaintiff’s expert on future care. The report stated that the plaintiff would need to use a dorsal column stimulator every five years for the remainder of his life.

“Open and Obvious” Dangers in Florida

Published on: November 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Slip and fall cases can be difficult to prove, particularly if the hazard that causes the fall is somewhat “open” or “obvious.” A recent case arose when a customer at Home Depot parked her car in a designated accessible parking space and upon returning to her car tripped over a wheel stop where her car was parked. It was a clear, sunny morning and she was carrying her purchases, a purse and keys.

The woman looked at the accessibility sign, but did not see the wheel stop because it was the same color as the parking lot. Her left foot caught on the wheel stop and she fell. She was hurt and had medical expenses. She and her husband filed a personal injury lawsuit against Home Depot.

The plaintiffs argued that the wheel stop was a dangerous condition and the defendant had an obligation to maintain the premises and to warn of any dangerous conditions on the property. Home Depot moved for summary judgment, arguing that the wheel stop was an “open and obvious” danger and therefore, it had no duty to warn customers about the wheel stop. It also argued there were no disputed issues of fact regarding its maintenance of the property.

What is the Role of an Expert Medical Advisor in Florida?

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

In Florida, an Expert Medical Advisor (or “EMA”) is asked by a workers’ compensation judge to resolve certain controversies. A judge must order an EMA if either party requests one. They also must be called when there is a disagreement between two independent medical examiners.

A judge may also choose to call an EMA when doctors disagree about the medical evidence in the case, when doctors disagree about whether further treatment is necessary and when doctors disagree about an employee’s ability to come back to work. The EMA’s opinion is given a legal presumption of correctness. This presumption can be rebutted only by clear and convincing evidence to the contrary of the EMA’s opinion.

In a recent workers’ compensation case, the employer argued that a workers’ compensation judge did not give the EMA’s opinion a presumption of correctness when it awarded a workers’ compensation claimant permanent total disability. In the case, the judge had appointed the EMA to resolve a conflict in medical opinions about the claimant’s restrictions for work.