Under Florida law, wrongful death refers to situations where a person’s negligence causes the death. After a successful lawsuit, the court may order the at-fault party to pay damages to the decedent’s close relatives. Damages typically include:
In recent decades, the irresponsible prescription and distribution of opioid pain medications has resulted in tens of thousands of overdose deaths and immense harm to families and individuals from the harmful effects of the addictive drugs. Recent lawsuits filed on behalf of states and counties across the country against drug manufacturers have resulted in billions of dollars in settlements and awards to the plaintiffs to compensate them for the harm caused by the opioid epidemic. In a first-of-its-kind new verdict, a federal jury has found that pharmacies can also be held accountable for their contribution to the flood of opioid drugs onto our streets.
According to a national news report, a federal jury in Ohio reached a verdict in a case filed by several Ohio counties against three major pharmacy chains. The lawsuit alleged that the pharmacy chains contributed to a public nuisance by their lack of oversight in filling prescriptions for dangerous opioid drugs which contributed to overdoses and deaths within their jurisdictions. The decision represents the first time that a judge or jury has found that public nuisance laws apply to pharmacies in this context, and could result in other successful lawsuits against pharmacies for their role in the opioid epidemic. The news report cautions that similar cases have failed in other states and that each state’s differing public nuisance laws will play a role in whether pharmacies can be held accountable for their prescribing practices. Additionally, the defendants pledge to appeal the verdict to higher courts.
Licensed pharmacists have a duty to act in certain cases if they know or should know that a prescription is suspicious or erroneous. While the recent verdict determined that this duty can extend to filling opioid prescriptions, it also applies in a broader sense to other dangerous or mistaken prescriptions that a person attempts to fill. For example, a pharmacist has a duty to ensure that the dosage and drug prescribed to a patient are safe when considering the information known to the pharmacist. This duty helps prevent mistakes or typos by prescribing doctors from harming or killing patients who fill their prescriptions at a pharmacy. If a pharmacist fills a prescription that has a known harmful drug interaction with another medication that a patient is prescribed, they may be held accountable in civil court for the damages stemming from the prescription error, even if a licensed doctor wrote the prescription and it was properly filled.
Florida medical malpractice lawsuits must pass several procedural hurdles before a judge or jury is able to listen to the facts of the case and decide if the plaintiff is entitled to any relief. In Florida, one such rule requires plaintiffs to submit a statement from a qualified medical expert corroborating their claim before the suit can proceed. This requirement is designed to weed out meritless claims and free up space in court dockets for malpractice claims that have a chance of succeeding. A circuit of the Florida Court of Appeals recently addressed a petition filed by a group of medical malpractice defendants that alleged the plaintiff failed to meet the presuit expert corroboration requirements for a claim to proceed. The defendants petitioned the court to directly challenge a lower court ruling that denied the defendant’s motion to dismiss the plaintiff’s claim based upon this argument.
The plaintiff in the recently decided case sued several defendants affiliated with the Shands Teaching Hospital, located on the campus of the University of Florida in Gainesville. The plaintiff alleged in their suit that medical services provided by a certified nurse practitioner at the hospital were not compliant with the standard of care required and that the plaintiff was injured as a result. In order to comply with the presuit expert corroboration requirement for a Florida medical malpractice claim, the plaintiff submitted an affidavit from a certified medical doctor with knowledge in the field. In response to the plaintiff’s complaint, the defendants alleged that the plaintiff’s medical doctor expert was not qualified to address the standard of care applicable to the certified nurse practitioner who rendered care in the plaintiff’s case.
The trial court reviewed the qualifications of the plaintiff’s medical expert, comparing them with the substance of the plaintiff’s claim and the role assumed by the defendant. The court subsequently denied the defendants’ motion to dismiss, finding that the plaintiff’s expert opinion was sufficient to fulfill the presuit requirements for the case to proceed. The defendants then filed a petition with the Florida Court of Appeals, attempting to have their motion reheard by a higher court. In addressing the petition, the high court noted the strict procedural requirements for the court to hear the defendants’ appeal, and ultimately declined consideration of their arguments. Specifically, the court ruled that the defendants did not show that proceeding with the case at the trial court would result in direct and irreparable harm to the defendants that could not be corrected on direct appeal. As a result of the appellate ruling, the plaintiff’s claim will proceed at the lower court toward a settlement or trial.
When someone is injured while on the job, it can be both physically and emotionally difficult to recuperate. When an employer terminates a worker because they can no longer work at the level they used to, it may be cause for a lawsuit. A Florida appeals court was recently tasked with deciding whether an employee who was terminated after being injured on the job was entitled to, amongst other financial compensation, punitive damages—meaning the employer acted callously and disregarded her rights by not reinstating her.
Under maritime law, when someone works on a ship, the shipowner has the responsibility to provide food, lodging, and medical services—called “maintenance and cure” if a crew member is injured while working aboard the ship. However, the obligation to provide maintenance and cure concludes when the worker reaches maximum medical improvement.
In this case, the plaintiff worked as a server aboard a cruise ship. Approximately three months into her employment, she was hit by a car when on shore leave. The plaintiff then debarked the ship and returned home, and her cruise ship employer—the defendant in this case—paid her medical bills. She later was deemed at maximum medical improvement, returned to work, and then complained about chest pain within weeks; then, her employer told her to speak with a physician and they would reimburse her medical bills. When the plaintiff’s doctor stated the plaintiff was not fit to work as a server but declared her at the maximum medical improvement level, the defendant terminated her benefits. Over the next three years, the plaintiff sent the defendant her medical bills and statements from her doctor; the defendant refused to reinstate her benefits.
According to the National Highway Traffic Safety Administration (NHTSA), over 90 percent of accidents involve driver error. Moreover, nearly 35 percent of those accidents involve road rage or aggressive driving. In Florida, road rage commonly refers to the anger a driver experiences when they experience stress or frustration while driving. Road rage is a serious problem in Florida, and a person’s fleeting rage can have long-term and potentially fatal consequences for other drivers, passengers, and bystanders.
While Florida authorities often distinguish between “driver error” and “aggressive driving,” many errors begin with an error and escalate into a rage. For instance, news reports described a harrowing road rage accident that took the life of a pregnant woman. The woman hit a motorcyclist and drove away from the incident. While the motorcyclist did not suffer injuries, he followed her to get information. The motorcyclist and two witnessed tried to get the woman to stop at an intersection; however, she continued driving and went to her home. The motorcyclist and witnesses followed her and waited outside of her home, and called 911. The woman appeared from her house with a firearm and pointed it at the motorcyclist and witnesses. The motorcyclist drew his handgun and shot at the woman multiple times. He remained at the scene of the accident until emergency responders arrived. Tragically, the woman died from her wounds.
Recently, news reports described new harrowing details following a Florida Tesla crash that occurred last September. The National Transportation Safety Board (NTSB) conducted an investigation and reported that that the car flew through a yellow light at around 90 miles per hour. The speed limit in the neighborhood was 30 mph. Apparently, as the driver approached reached the intersection, he hit the accelerator to 100%. The driver then sped through the light and slammed into two trees in succession. Following the impact, the car’s battery exploded and burst into flames. The fire reignited at least one time which caused firefighters to experience challenges when trying to extinguish the explosion. The 20-year-old driver and his 19-year-old passenger died at the scene of the accident.
Tesla is frequently under fire for its self-driving or “autonomous” driving options. Many argue that these functions are not nearly as safe as the company touts, and a lack of driver experience and company oversight leads to deadly consequences. However, this accident seems to involve another issue concerning lithium batteries. The NTSB has repeatedly voiced concerns about lithium battery fires in aircraft, Teslas, and other vehicles. The agency has issued safety recommendations urging regulators, manufacturers, and firefighters to prevent and prepare for these types of fires.
Lithium-ion batteries have been the source of highly publicized investigations and recalls. Lithium is the lightest metal with the least dense solid element thereby creating a high-energy-density. This density allows lithium to store more energy over a longer time, compared to traditional batteries. Despite this benefit, the battery poses a serious danger because of its combustible material. A single cell can get hot to the point where it catches fire and spreads to the next cell. This “thermal runaway” effect essentially makes the battery easily catch fire or explode quickly.
Many Florida personal injury lawyers represent clients on a “contingency fee” basis. Under this framework, an attorney will get paid by deducting a portion of a final, personal injury or wrongful death settlement or from a damages award. Recently, a Florida injury plaintiff moved to assess attorneys fees based upon a settlement proposal. The trial court denied the motion, reasoning that the settlement proposal was ambiguous.
The case stems from injuries the plaintiff suffered while living as a tenant on the defendant’s property. Before litigation, the plaintiff served the defendant with a settlement proposal according to Florida Statutes § 768.79 and Florida Rules of Civil Procedure (FRCP) 1.442. The defendants did not accept the proposal, but a jury found it in favor of the plaintiff. The plaintiff moved for attorneys fees because the judgment exceeded the settlement proposal by more than twenty-five percent.
The defendants argued that the proposal included ambiguous and vague language and was beyond the scope of the claims. Florida courts strictly construe the statute and rule because the common law rule is that each party should pay its fees. Furthermore, settlements proposals must be “sufficiently clear” to allow the offeree to make an informed decision. The purpose of the rule is to conserve judicial resources and reduce litigation costs by encouraging settlement negotiations.
Recently, an appellate court issued a decision addressing whether a plaintiff’s claim falls under Florida’s negligence statute or the state’s medical malpractice statute. The plaintiff filed a claim against the defendant, a healthcare group, for injuries he suffered while receiving treatment at the facility. According to the record, the hospital admitted the patient for diagnostic imaging. Following the procedure, the plaintiff tried to move from the exam table to a wheelchair. However, the plaintiff fell because the attendant failed to secure the wheelchair brakes properly. The plaintiff claimed that his claim was based on ordinary negligence, not medical malpractice.
However, the court dismissed the complaint at trial, finding that the claim sounded in medical malpractice, and the plaintiff failed to abide by the applicable statute of limitations.
In cases like this, the initial inquiry is based on determining whether the claim stems from ordinary negligence or medical malpractice. According to Florida courts, these types of “gray-area” cases hinge on the specific circumstances of the injury. However, the law limits a court’s inquiry to the allegations within the “four corners” of the plaintiff’s complaint at the preliminary stages. In this case, the court found that the plaintiff alleged sufficient facts to meet the elements of an ordinary negligence claim. As such, they reversed the trial court’s finding, ruling that the dismissal with prejudice was inappropriate.
The Third District Court of Appeals recently addressed a defendant’s appeal following a jury trial awarding the plaintiff compensatory and punitive damages. According to the facts, the cause of action arises from a car accident when the defendant crossed over the center line and slammed into the plaintiff’s vehicle, causing it to flip over nearly two times. The plaintiff and her children survived, and she filed a negligence lawsuit against the defendant. The plaintiff amended her complaint and added a claim for punitive damages, arguing that the defendant was high on heroin at the accident.
Before trial, the parties provided a list of witnesses and any potential expert testimony. The defendant filed an “expert disclosure” for a CPA to testify regarding the plaintiff’s economic damages. Later the same day, the defendant filed a supplemental disclosure for the CPA, indicating that the expert would testify to the defendant’s net worth and the amount he needs to sustain himself. Further, the defendant claimed that the expert would testify about the effect that punitive damages would have on his livelihood. The plaintiff moved to strike the disclosure, arguing it was untimely; the court agreed and limited the CPA’s testimony to economic damages. The defendant testified to his limited financial resources at trial, but he did not call the CPA as a witness. The defendant appealed the jury’s award of punitive and compensatory damages to the plaintiff.
Under Florida law, courts can exercise discretion when determining whether to allow an untimely disclosed witness. Courts should make their decision primarily based on whether the testimony will prejudice the objecting party. Prejudice refers to the objecting party’s surprise, not to the adverse nature of the testimony. Some factors that a trial court should consider including:
A Florida appellate court recently reviewed a woman’s appeal after a trial court compelled arbitration of her personal injury lawsuit. The case arose when she sought damages following injuries she suffered in a boat accident. She suffered injuries on the ladder of a boat she rented as part of her club membership with the defendant. In response, the defendant moved to dismiss the complaint, and in the alternative, compel arbitration. The plaintiff filed a response, contending that the defendant waived its right to arbitrate by filing and participating in a limitation of liability action in federal court.
The record indicates that the defendant filed a complaint in federal court for exoneration based on several issues including the Limitation of Shipowners’ Liability Act. The complaint addressed the plaintiff’s claim, and the plaintiff answered by filing her lawsuit, raising affirmative defenses, and preserving her right to a jury trial. After that, the defendant objected to all of the plaintiff’s assertions and argued that her injuries resulted from her negligence moved to compel arbitration.
Under Florida law, waiver occurs when a party voluntarily and intentionally relinquishes a known right or conduct. Courts evaluating whether a party waived their right to arbitrate must look at the totality of the circumstances and whether the defaulting party acted inconsistently with their right to arbitrate. Florida courts have held that initiating a lawsuit without seeking arbitration amounts to an affirmative selection of a path that runs counter to the point of arbitration. Once a party waives their right to participate in arbitration, they may not reclaim their right without the other party’s consent.
South Florida Personal Injury Lawyers Blog
