South Florida Personal Injury Lawyers Blog

Florida Appellate Decision Recognizes Importance of Accident Victim’s Right to Seek Counsel

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

The recent appellate decision in Howard v. Palmer illustrates that the courts recognize the importance of being able to hire an experienced, savvy personal injury attorney right away. In that case, an employee of Groupware ran a stop sign and crashed into the plaintiff’s car. The plaintiff sued for personal injuries in a negligence and vicarious liability lawsuit against both employee and employer.

Before trial, the plaintiff’s attorney made a motion to prevent the defense attorney from presenting evidence that on the day of the accident, the plaintiff contacted an attorney who referred him to a doctor. The plaintiff’s attorney believed that the defense attorney would ask all of the plaintiff’s doctors if they knew he had met with an attorney. The defense confirmed that this was its plan, claiming that plaintiff contacting an attorney the day of the accident created an issue as to whether he actually experienced a permanent injury or if it was a manufactured permanent injury.

The trial court ruled for the plaintiff and prohibited the defense attorney from asking questions about when plaintiff contacted an attorney. Nonetheless, when questioning the plaintiff’s treating physicians, the defense attorney asked one of the doctors if he knew that the plaintiff had seen an attorney before going to the first treating doctor. In a sidebar before the court, the attorneys disagreed about what the court’s ruling had been, and the plaintiff’s counsel brought up the case law he had brought up during the motion. That case law concerned a similar issue in which the court ruled inadmissible any evidence of a plaintiff seeing an attorney three days after an accident.

The trial court in the instant case agreed with the plaintiff and said it would give the jury a curative instruction. The plaintiff’s counsel next asked for a mistrial to sanction defense counsel for violating the court’s order.

Florida Legislative Ban on Texting While Driving

Published on: May 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

After four years of thinking about whether or not to ban texting, the Florida legislature has sent a texting-while-driving ban to Florida Governor Rick Scott this week. The House voted 110-6 to pass the ban, while the Senate voted 39-1 to approve the bill that the House had amended.

Critics of the ban say that this ban is a watered-down bill. It makes texting while driving a secondary offense, rather than a primary one. In other words, a driver has to also violate another law in order to be pulled over for texting. A driver who violates the ban for the first time can only be fined $30.00 plus court costs.

The ban permits cellphone records to be used as evidence only if an accident causes a death or personal injury. While this latter point is good news for those who have suffered a personal injury, it does not help those who are killed as a result of others’ negligence in texting while driving. This is a big enough problem in Florida that the ban probably should have been stronger. Thirty-nine states and D.C. already ban texting.

Most of us know someone who texts while he or she drives, even though studies show that texting while driving is incredibly dangerous. One in 7 adults has admitted he or she texts while driving. Texting while driving diverts a driver’s visual, manual and cognitive attention away from the road. In 2011, 23% of car crashes (which comes out to equal approximately 1.3 million) involved cell phone use. That year, 3,331 people in the United States were killed by a distracted driver (not just including those who texted, but anybody whose attention was fixed on something other than driving).

Florida Workers’ Comp Limitation Ruled Unconstitutional

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

A recent victory for injured Florida workers in a workers’ compensation case, Westphal v. City of St. Petersberg, has upset the insurance industry. In the case, a firefighter challenged an order denying his claim for permanent total disability benefits and the constitutionality of the entire system of workers’ compensation benefits. The firefighter (who was also a paramedic) suffered nerve damage in his legs that required spinal surgery and other treatment during the course of his work.

After the accident that gave rise to this claim, the firefighter’s employer, the City, accepted the claim and paid the firefighter benefits for total temporary disability. The firefighter was forced to abide by the City’s choice of doctors and their medical recommendations, or forgo workers’ compensation benefits that he needed. He required multiple complex surgical procedures.

Even after the most recent surgery, about three years out from the occurrence of the accident, the firefighter was not able to work or obtain employment. He had exhausted the state limit of 104 weeks of temporary benefits, but permanent total disability benefits only kicked in when he reached “maximum medical improvement.” His physicians could not determine his long-range medical prospects and could only speculate. He had not yet reached “maximum medical improvement” but his injuries were so severe that doctors also advised him not to work.

Accordingly, the firefighter was denied permanent total disability benefits. He fell into a “statutory gap” that is not rare, where he had surpassed the number of weeks he could claim temporary total disability, but he had not reached a state where the nature of his permanent disability could be assessed.

Florida Appellate Court Overturns Summary Judgment on Minor’s Medical Malpractice Claim

Published on: April 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Moody v. Lawnwood Medical Center, Inc., a Florida appellate court considered a lawsuit for medical malpractice brought on behalf of their minor child, after the trial court granted summary judgment against them. The appellate court looked at two issues. The first was whether the releases of two doctors who treated the minor also released the medical center. The second was whether the medical center had a non-delegable duty to provide competent emergency care to a minor.

The case arose when a minor was hurt in a playground accident. Her mother brought her to a pediatric health clinic where x-rays were ordered. A right hip fracture was diagnosed and the pediatrician recommended that the mother bring her child to the medical center that was a defendant in the lawsuit because he had staff privileges there.

The mother brought her daughter to the emergency department at the medical center and signed a form that claimed to limit the medical center’s liability for acts of independent contractor physicians. The mother later denied ever seeing these terms or agreeing to them.

An orthopedist concluded the minor did not have a hip fracture and therefore, she was discharged. However, her symptoms got worse and she had to be brought to another hospital, which found she had a fractured right hip, septic arthritis, septic shock, right heart failure, MRSA and infections. She was hospitalized for 10 weeks and experienced long-term complications.

Florida Appellate Court Finds No Fraud Upon the Court in a Products Liability Lawsuit

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

The District Court of Appeal of Florida, Fifth District, recently decided a case involving products liability. The case arose from a 2003 auto accident when a couple’s Ford Aerostar allegedly went from standing still into an acceleration that injured the wife. According to the couple’s lawsuit, Ford knew that the van’s cruise control system was defectively designed such that it allowed electromagnetic interference to cause a sudden acceleration from a standstill position.

In Florida, products liability lawsuits brought 12 years after purchase of a product that has an expected useful life of 10 years or less are barred unless the manufacturer knows of and conceals a defect. The couple claimed their case fell into this exception to the bar because the car company actively concealed the defect. During trial, however, the husband testified he might have touched the accelerator.

Before trial, the couple claimed that the car company committed fraud by concealing its knowledge of the sudden accelerations and by pushing the theory that the husband stepped on the gas instead of the brake, causing the acceleration. The trial court did not rule immediately, instead moving the case into trial. After closing arguments, the jury found for the car company, finding that the company did not put the car on the market with a defect that caused the wife’s injury and that there was no negligence by the car company that caused the wife’s injury.

After trial, the couple filed a request for relief from judgment and a new trial. The basis for these motions was that the car company perpetrated a fraud upon the court by putting forward a pedal misapplication defense while knowing that sudden acceleration in its cars was caused by electromagnetic interference.

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.

Florida Appellate Court Rules New Trial Not Appropriate in Car Accident Case

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

In Smith v. Lllamas, the Second District Court of Appeal of Florida ruled on the question of whether a motion for new trial was appropriately granted in an auto accident case. The case arose from a car collision that occurred in 2008, when a man and woman were each traveling in opposite directions on a two-lane road.

The woman was turning left when the cars crashed. The man sued her, alleging personal injuries in his neck and knees. The woman raised comparative negligence as her defense.
At trial, the parties presented conflicting expert testimony on the man’s neck injury. The neurosurgeon who treated the man said it was a permanent injury and that although he had undergone surgery, he did not expect the surgery to fully eliminate his neck pain. The orthopedic surgeon who testified for the woman said he didn’t think the injury arose from the car accident and that he would have recommended a more conservative approach than surgery.

The parties also presented conflicting evidence with respect to the knee injury the man alleged. The orthopedic surgeon who treated the man said the injury was caused by the accident and permanent, but that the basis for his opinions was partially from the history given by the man. He admitted there were inconsistencies in what the man had told him. For example, the man had gone to the chiropractor immediately following the accident, rather than the emergency room even though he claimed he was bleeding. He didn’t seek treatment for his knees until eight months after the accident. Also, he didn’t consistently report knee pain to his doctors–even four days after the accident.

The jury found the woman solely liable and awarded the man past medical expenses in the amount of $37,000 without apportioning the award between his neck and knee injuries. They found the injuries weren’t permanent and awarded him nothing for his future care and pain and suffering.

Florida Hospital Ordered to Re-calculate Patient’s Life-Expectancy Damages

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

A Florida woman was diagnosed with stage 3c breast cancer after her physician failed to report evidence of microcalcifications during a routine breast screening two and a half years before the diagnosis. The injured patient filed suit against the hospital, treating physician, and medical imaging company. She agreed to let an arbitration panel determine the amount of damages she was entitled to, but disagreed with their calculation of the damages for loss of earning capacity. She argued that it should be based on her life expectancy before the injury occurred and appealed the arbitration panel’s decision to the Florida Third District Court of Appeals.

All parties agreed there was a chance of the breast cancer recurring, and that the recurrence would be fatal. To determine damages, her loss of earning capacity calculation began at an anticipated date of recurrence, but the parties disputed which life expectancy length should be used. The hospital argued that Florida law required the woman’s life expectancy to be calculated based on her current, post-injury life expectancy. The doctor and imaging company argued awarding damages that calculated her loss of earning capacity based on her pre-injury life expectancy would allow a personal injury claim to survive her death. The hospital, doctor, and imaging company’s argument is based on the idea that she would benefit from an award that belonged to her survivors and estate in a wrongful death action, thus she should be limited to a post-injury life expectancy calculation.

The Court of Appeals agreed with the injured patient and ruled that she should be allowed to calculate her life expectancy based on her pre-injury estimate and not post-injury. They Court agreed that survivors and beneficiaries have a right to sue in Florida for future loss of support and services in a wrongful death action, but noted that a wrongful death action is actually precluded under Florida law when the injured party is successful in obtaining a personal injury judgment. In this case, the injured patient’s family would not be able to recover in a wrongful death action, so she is entitled to damages that calculate her pre-injury life expectancy. The Court of Appeals recognized that several courts around the United States have the same position and that a calculation considering pre-injury life expectancy is fair and necessary to make someone “whole”, or as they would have been but for the injury.

Florida Court of Appeals Determines Injured Worker Qualifies for Permanent Total Disability

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

Florida’s First District Court of Appeals issued a ruling that an injured worker who could not find a job at an approved level of physical restriction within his vocational capabilities qualified for permanent total disability. The injured employee worked at a trucking company for nearly three decades and suffered an injury on the job. The injured worker reached maximum medical improvement, the point where his health could not get better even with the assistance of medical care, and sought permanent total disability.

Different types of employment require varying levels of physical exertion. Depending on the type of injury sustained, an injured worker may need to adjust his or her level of exertion on the job. The U.S. Department of Labor classifies the different levels of exertion as sedentary, light, medium, heavy, and very heavy work. The injured worker in this case was employed as a driver of semi tractor-trailers and field tractors, which was determined to be medium work. Medium work is defined in the Dictionary of Occupational Titles as work that requires lifting of 50 pounds with frequent lifting or carrying of objects weighing up to 25 pounds. The injured worker was assessed by a doctor who reported that his injury limited his physical restrictions at work to light to medium duties. Light duty is defined as lifting less than 20 pounds with frequent lifting or carrying of objects weighing up to 10 pounds.

The employer hired someone to do a re-employment assessment for the injured worker. The assessor determined that the injured worker should return to work for the same company as a security guard, as that was the only position available that stayed within the realm of the injured worker’s physical exertion limitations. However, the employer had no open security guard positions at the time of the assessment and made no effort to offer a security guard position to the injured employee.

The Court of Appeals looked at whether the injured worker was able to engage in at least sedentary employment within a 50 mile radius of his residence. The assessor stated that the employer’s security guard post was the the only suitable position as the injured worker could not be placed anywhere else. The Judge of Compensation Claims had previously ruled that the injured worker did not show he could not engage in at least sedentary employment, but the Court of Appeals said the opposite was true. The court thought the fact that his own employer couldn’t even provide him with a job showed that he was unable to find appropriate employment that would accommodate his injury.

Florida Court of Appeal Allows Boat Retailer to Bring Third Party Claim Against Manufacturers

Published on: April 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Second District Court of Appeal recently ruled in a case regarding personal injuries sustained in a flash explosion on a boat. The case arose when a retailer sold the boat to a couple and later performed repairs. There was a flash explosion on the boat and according to the couple, it happened because of a leak in the fuel pump.

The couple filed a complaint against the retailer for negligence and strict liability, claiming that the retailer failed to properly service, repair and inspect the boat and failed to warn them of the defect. They also asserted claims for negligence and strict liability against the boat manufacturer, the pump manufacturer, and the engine manufacturer alleging that there were failures to warn them of the defect and that they allowed the defect to pass through their shops undetected.

The retailer filed an answer and affirmative defense in 2011, before the plaintiffs’ depositions were taken. Later that year, they served notice that they would drop the various manufacturing defendants without prejudice, but did not file an amended complaint or withdraw the allegation of a defective pump.

The following year, the retailer tried to file a third-party complaint against the dismissed manufacturing defendants, claiming that the couple had sued it on the basis that it had sold them a boat with a defective pump. It claimed that it hadn’t changed the pump, engine or boat and that if it were liable, its liability would be vicarious or secondary to that of the dismissed manufacturing defendants. The retailer asked for contribution from the manufacturers.