South Florida Personal Injury Lawyers Blog

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.

Injured At Sea: Compensation Often Available For Florida Sea Vessel Workers

Published on: March 29, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As a coastal state, Florida derives much of its economy from sea-based commerce and activities. Cruise ships, commercial vessels, and pleasure boats all provide jobs to Florida residents and attract tourists from around the world. Owners and operators of all different types of vessels owe a duty of care to the invited guests and workmen that sail aboard their respective ships. If an injury or death occurs on board due to negligence, then suit may be filed in either state or federal court, depending on the individual circumstances of the injury.

If a worker gets sick or injured while onboard a commercial vessel, they may be able to sue for maintenance and cure. Maintenance and cure are long-standing remedies provided by federal maritime and admiralty law. Maintenance is a daily allowance given to those injured during their period of recovery until they reach maximum medical improvement or, in the alternative, are ready to report to duty in the same physical condition they were in prior to the injury. Cure is payment for reasonable and necessary medical expenses including doctor visits, medical equipment, testing, and transportation for medical appointments.

The Jones Act is federal maritime and admiralty legislation that allows injured seamen to recover damages sustained. The Jones Act may award compensation for lost wages, medical bills, pain and suffering, and future wages. The Jones Act was created to maximize recovery and compensation for injured workers, while limiting litigation. Damages for maintenance and cure can be recovered without showing the vessel operator or owner was negligent, but courts limit the amount of recovery to expenses actually incurred. If it can be shown the employer was negligent, then the injured party may be able to recover pain and suffering.

Families may be able to recover for injured seamen through a wrongful death action or suit under the Death on the High Seas Act (DOHSA). DOHSA pre-empts state causes of action when the event that led to the death occurs more than three nautical miles from shore. A personal representative may try to pursue on behalf of a child, dependent relative, husband, or wife for pecuniary damages, which are defined as loss of support, services, and inheritance. Proof of these damages must be supported by facts with a reasonable amount of certainty.

Potential for Fracking Operations in Florida Presents Concerns of Silica Inhalation

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

Legislation was recently introduced by a state representative that would require industries to report the chemicals injected into the ground while fracking in Florida. Currently there is no fracking operation in Florida, although there has been recent speculation that fracking would begin in South Florida near other oil and gas operations. Fracking is a technique used to stimulate oil and gas production by forcing water through the ground at high pressures. The process has been scrutinized for its potential to damage the environment and expose workers to silica inhalation.

Silica and asbestos exposure can cause serious damage to the exposed person. Asbestos was a form of insulation commonly used in construction because of its sound absorption and ability resist fire, heat, and electrical damage. Silica is a material found in several types of rocks that are frequently used in construction. Both are tiny particles that can remain in the lungs once inhaled, accumulating and causing scarring and inflammation. This affects the exposed person’s ability to breathe and often results in serious illness like mesothelioma.

Employers of construction businesses are obligated to maintain their workers’ health and safety, including exposure to silica or asbestos. If they fail to use ordinary and reasonable care on the work site, and either fail to warn employees of potential harm or neglect to maintain a work site that minimizes exposure, the employer or owner may be liable for injuries the employees suffer. Manufacturers of products that contain silica or asbestos may also be liable for injuries suffered due to product defects. The product itself may be considered unsafe, and inadequate warnings or instructions for safe use may be absent. Safety products themselves that are designed to protect you from silica or asbestos exposure may also fail, creating a breach in the manufacturer’s obligation to provide a safe product.

Florida legislation determines who can file an asbestos or silica related claim. A plaintiff must show that physical impairment was a result of a medical condition to which exposure to asbestos was a substantial factor. Extensive medical documentation is required by a qualified medical professional. Medical examiners assess the impairment rating of the individual’s lung capacity. There must also be proof of the injured’s substantial occupational exposure to asbestos.

State Court of Appeals Allows Hospital to Take Patient’s Personal Injury Award

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

Eighteen Florida counties allow hospitals to pay for a patient’s care by granting them the ability to take a portion of the patient’s legal judgment or settlement. This is called a hospital lien, or a right to secure a debt. A patient may seek treatment at a hospital for an injury sustained in a car or work accident. If that patient sues the negligent party and has unpaid medical bills, the hospital can file a lien against any potential judgments or settlements to recover the amount billed.

Wisconsin has a state statute granting similar rights to hospitals to enforce liens against a patient’s judgment or settlement. The state’s appellate court recently handed down a decision in favor of a hospital and its ability to enforce a hospital lien. In that case, the patient qualified for Medicare, but the hospital chose to enforce the lien instead of billing his medical care costs of $19,423 to Medicare. The plaintiff sued, but the trial court granted summary judgment to the hospital. The injured party argued that federal law mandates hospitals to bill Medicare for those who qualify for Medicare and not the individual. The injured plaintiff depended on a memo from the U.S. Dept. of Health and Human Services that interpreted the Medicare provision to bar hospital from enforcing liens after the Medicare billing period expired.

The trial and appellate courts, however, decided that the Medicare law does not require hospitals to withdraw their liens after the Medicare billing period had expired and that 42 U.S.C. § 1395y(b)(2)(A)(ii) allows Medicare to become the “second payer” if there’s expected third party liability. The appellate court rejected the injured plaintiff’s reliance on the DHHS memo, stating that the memo does not provide a reasonable interpretation of the Medicare law.

This past year, the Supreme Court of Florida declared Florida’s state law granting hospital liens unconstitutional in Shands Teaching Hospital and Clinics, Inc., v. Mercury Ins. Co. of Florida. It allowed local ordinances to stand, but determined that the state lien law was a ‘special law’ pertaining to the creation, extension, or impairment of liens based on private contracts. The court considered the care between the teaching hospital and the patient to be a private contract, so a lien cannot be enforced through legal action under state law. A Florida hospital may be able to enforce a lien against an injured party’s judgment, but only if the hospital is in a county with an ordinance granting them that right. The hospital must follow the proper procedures to file the lien so that all parties are notified that the lien exists. Insurers are supposed to check for all potential hospital liens before issuing a check to the injured party.

Injured parties often contest the amount of the hospital lien. Hospitals enforce liens attached to uninsured parties or parties who qualified for federal entitlement benefits, but they secure the amount of the original bill – not the amount that would have been billed to a program like Medicare or Medicaid. The original hospital bill is often grossly different than the negotiated amount an insurance company pays, and the hospitals may even seek the difference from the insurance company and the original bill, even though the injured party would not have been responsible for that amount.