South Florida Personal Injury Lawyers Blog

Vicarious Liability Between Doctors and Hospitals in Florida Medical Malpractice Lawsuits

Published on: February 17, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a medical malpractice plaintiff appealed a trial court’s order granting summary judgment in favor of a hospital system. The case arose when the plaintiff visited a Florida hospital for appendicitis and an abscess. An on-call surgeon met with the plaintiff; however, the plaintiff felt uneasy with the surgeon and requested another doctor. The next doctor was not available until the next morning, so the plaintiff proceeded with the surgeon. The plaintiff requested antibiotics after the surgery, but the surgeon explained that they were unnecessary. However, the plaintiff suffered a serious postoperative infection. He filed a lawsuit against the doctor and the hospital. The hospital argued that the doctor was an independent contractor, and not an employee or agent of the hospital.

Under Florida’s vicarious liability laws, an employer may be liable for the negligence of the employees committed within their employment scope. In cases involving hospitals and independent contractor physicians, a hospital may still be liable if the hospital “cloaked her with apparent authority to act on its behalf.” Apparent agency exists if the plaintiff can establish three elements.

The three elements of an apparent agency inquiry are:

Unique Issues Arising After a Florida Train Accident

Published on: February 12, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Trains provide commuters and leisure travelers with an efficient and convenient way to travel to their destinations. However, traveling on railroads or through train tracks can present significant dangers to passengers and road users. Those who suffer injuries in a Florida train accident, should contact an experienced attorney to parse out the complex issues that these cases present.

Railroads pose serious public safety issues, which can lead to severe injuries or death. There are many reasons that railroad accidents occur, and many involve systemic negligence or operator error. Despite the prevalence of safety issues, many large train companies have implemented barriers to recovery. For instance, Amtrak, imposes mandatory arbitration agreements on ticket holders who claim negligence against the company. The unique structure of many train companies makes recovery difficult.

There are many reasons that a train accident may occur. The most common causes of Florida train accidents are operator error, distraction, track defects, train malfunctions, defective equipment, and rail-crossing errors. However, in some instances, the exact cause of the accident may be confounding. For example, a recent news report described a fatal Florida train accident. Deputies reported that an Amtrak train hit a truck in Plant City, Florida. The train crew told investigators that when they noticed the truck, they blew the train’s horn several times to indicate that the train could not slow down. However, the truck did not clear the railway in time. The truck driver was pronounced dead at the scene of the collision.

Special Report Reveals Higher Numbers of Fatal Florida Accidents Despite Lower Traffic

Published on: February 10, 2021 | by Friedman Rodman Frank & Estrada, P.A.

The National Highway Traffic Safety Administration (NHTSA), recently provided an update on traffic safety during the national health crisis. The research team collected data from five locations, including Jacksonville, Florida, and Miami, Florida. The findings reported first-quarter data regarding Florida motor vehicle fatality rates. The data found that car accident fatality rates increased, even though the overall number of traffic accidents decreased during the past several years. Additionally, statistics showed an increased prevalence of drug and alcohol use among those who suffered serious or fatal injuries in accidents.

During the beginning of the COVID-19 public health emergency, driving patterns changed drastically, as many people lost their jobs or began working from home. The figures demonstrated that those who remained on the road during the crisis were engaged in riskier behavior. Some of the behavior included speeding, failure to wear seat belts, and driving while impaired. Compared to the previous six months, the proportion of those who tested positive for opioids or marijuana significantly increased during this time.

The NHTSA stressed the importance of seat belt use, as seat belts are one of the most critical safety features in vehicles. Ejection data shows that seat-belted occupants are far less likely to be thrown from a vehicle. The study indicated a decrease in seat belt use during the first period of the public health crisis. Although seat belt use increased slightly later on during the crisis, the overall number was below the level before the emergency.

Liability After Florida Truck Accident Caused by Improperly Loaded Cargo

Published on: February 5, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Personal injury lawsuits, especially those involving trucks, often entail various complex issues and multiple parties. Those injured in a Florida trucking accident, should seek representation from an attorney to protect their rights and help pursue their remedies.

Trucking accidents tend to result in the most severe injuries and significant damages. Although some accidents are unavoidable, most Florida trucking accidents are due to one or more parties’ negligence or recklessness.

Truck manufacturers, trucking companies, loaders, and drivers, all maintain a duty to ensure that they act safely in the manufacture, training, securing, loading, and operation of their vehicles. A failure at any of these steps may result in serious dangers to anyone in the vicinity of the truck. People often attribute accidents to a defect in the truck itself or truck driver operation error; however, many Florida trucking accidents occur because of insecure cargo that becomes detached while the truck is in motion.

The Importance of Pleadings in Florida Personal Injury Lawsuits

Published on: February 3, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Although people are generally familiar with the stages of a criminal lawsuit, there tends to be an extraordinary amount of misinformation and confusion regarding Florida civil lawsuits. There are many critical stages of a civil lawsuit that can significantly impact a plaintiff’s avenue for recovery after an accident. Individuals should contact an attorney at the onset of their lawsuit to ensure that they maintain the ability to recover for their damages.

Pleadings are the first stage of a Florida personal injury lawsuit. Although the term is often conflated with “all documents” in a case, the term is much narrower in scope. Pleadings are only documents and filings that set forth allegations, causes of actions, and the defending entity’s responses and defenses. This stage includes the complaint, answers, responses, counter and cross-claims, and relevant amendments.

Florida personal injury lawsuits commence when a party files a complaint or petition. The victim or complaining party should include factual assertions and the associated legal claims. In some situations, the pleadings must conform to special rules, such as claims arising out of medical malpractice or governmental entities. Florida Rules of Civil Procedure allow plaintiffs to proceed under inconsistent theories; however, the rule extends to defenses as well. Courts may rule in favor of a defendant and grant summary judgment if the complaint is insufficient. For example, a Florida appeals court recently dismissed at plaintiff’s claims based on a pleading deficit. In that case, the plaintiff asserted a negligence claim against his neighbor for a fire that a third-party contractor started. The plaintiff failed to address the third party in the complaint. The court found that both parties agreed that the defendant was not negligent and, therefore, only a vicarious liability claim would be viable against the defendant. However, the court dismissed the complaint because the plaintiff failed to allege vicarious liability in their pleading.

Filing a Third-Party Personal Injury Lawsuit After a Florida Workplace Accident

Published on: February 1, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Workers’ Compensation Law provides workers with benefits if they suffer injuries at work or while in the scope of their employment duties. At first glance, the system appears as a quick and efficient way for Florida employees to obtain benefits for their injuries and return to work. However, the system inherently favors employers because, barring certain exceptions, employees lose their right to bring a common-law personal injury lawsuit against their employer. Exceptions to this rule exist in certain situations, such as if the employer did not maintain appropriate worker’s compensation insurance. Further, an exception applies if the employee suffered injuries because of their employer’s particularly egregious wanton gross negligence or intentional conduct. Finally, workers’ compensation does not protect employers from assaults against their employees.

In many cases, workers’ compensation insurance does not adequately cover all of an employee’s injuries and damages. Although employees may not assert personal injury claims against their employer, they may recover damages from other responsible third-parties. To succeed on a third-party claim, plaintiffs must be able to prove that they had a work-related accident, the third-party owed them a duty of care, they breached that duty, and the plaintiff suffered injuries because of the work-related incident.

For example, a Florida news report recently described a tragic accident at a St. Petersburg Home Depot. A delivery driver suffered fatal injuries when construction materials fell on him at the store. The driver was working as a third-party carrier for a building material company. The U.S. Occupational Safety and Health Administration (OSHA), the federal entity that ensures safe and healthy working conditions, reported that the incident is under investigation. Additionally, Home Depot commented that they were working with authorities to investigate the accident.

Navigating the “Obvious Danger” Doctrine in Florida Premises Liability Claims

Published on: January 27, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Whether you work in an office building or in a manufacturing plant, you go to work every day with a reasonable expectation that your workplace will be safe. In the event that something is unsafe or potentially dangerous, employers will typically mark or block off the space. For example, wet floor signs indicate when a corridor may be slippery, and construction tape can block off areas undergoing renovation. If you are injured while on the job because of a workplace hazard in Florida, you may be eligible to file a claim for compensation.

In a recent District Court of Appeal of Florida decision, the court considered the obvious danger doctrine in a premises liability claim. The plaintiff, an employee of the defendant, was injured when he stepped into an uncovered drain on a construction site. At various times, the drain that injured the plaintiff was covered and uncovered, depending on the phase of construction. When the plaintiff was last at the site, the door he stepped through before being injured by the drain was marked off and closed with tape. On the day of the accident, however, the door was not blocked off by tape. Because of especially bright conditions and a mixture of sunlight and dust from the construction, the plaintiff was blinded temporarily when he opened the door to a landing and stepped into the drain. Following the accident, the plaintiff sued the defendant for negligence, arguing that the defendant breached its duty to maintain safe premises. The trial court ruled in favor of the defendant, concluding that they had no duty to warn the plaintiff of “an open and obvious drain” and that the plaintiff should have taken steps to avoid the accident.

On appeal, the court reversed and sided with the plaintiff. According to the appellate court, the lower court was incorrect when it held that the defendant was not liable because the drain was open and obvious. Although the drain may have been obviously uncovered, the defendant failed to dispute whether its dangerous condition was obvious. Further, the court reasoned that even if the drain’s danger was open and obvious, the defendant still had a duty to maintain reasonably safe premises for its employees.

Court Awards New Trial in Florida Premises Liability Appeal

Published on: January 22, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court addressed whether a res ipsa loquitur jury instruction was appropriate in a Florida premises liability case. The case arose when an attorney was visiting her client in an Orange County jail. As she was passing through the security gate, the gate unexpectedly slammed down onto her, causing her to suffer injuries. The plaintiff pursued a lawsuit against the Orange County jail. At trial, she requested the court to provide a res ipsa loquitur instruction to the jury. After losing at trial, the County appealed, requesting a new trial, arguing that the instruction was inappropriate.

Res ipsa loquitur is an evidentiary rule that shifts a plaintiff’s burden of proof to the defendant. The doctrine translates to “the thing speaks for itself”, and applies in cases where a court can infer negligence from the fundamental nature of an accident or injury. Plaintiffs who wish to prove a claim under the doctrine must meet three elements:

Direct proof of negligence is unavailable;

Court Addresses Summary Judgment Standard in Florida Car Accident Case

Published on: January 20, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Supreme Court of Florida answered a certified question regarding the state’s current summary judgment standard. The lower court certified a question asking the court whether there should be an exception to the summary judgment standard when the moving party has video evidence that refutes any evidence that the non-moving party presents.

The case arose after a fatal Florida rear-end car accident. The decedent’s estate filed a lawsuit against the front-car driver and the driver’s employer. At trial, the court relied on the front-car driver’s video evidence showing that the driver was not negligent. However, the appellate court reversed, stating that the trial court “improperly weighed’ conflicting evidence, leading to the certified question.

In the last year, the Florida Supreme Court advised the public of its intention to adopt the summary judgment standard explained by the United States Supreme Court. The court explained that despite the similarities, the Federal Rules of Civil Procedure and the Florida Rules of Civil Procedure had not been aligned. The first difference stems from Florida courts’ refusal to recognize the similarities between summary judgment standards and directed verdicts. Next, Florida courts place the burden on the moving party to disprove the other party’s case theory, to successfully eliminate any issue of fact. Federal courts discharge the moving party’s burden when there is an absence of evidence to support the other party’s case. Finally, Florida courts permit a broad understanding of what amounts to a “genuine issue of material fact”, where the “slightest doubt” is enough to preclude summary judgment. Florida courts have announced that the federal standard best serves the civil procedure rules, and the change will take place in May 2021.

Fatal Florida Car Accident Leads to Wrongful Death Case

Published on: January 18, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A federal district court recently issued an opinion in a plaintiffs’ appeal in a case involving their daughter’s death. The case arose from a tragic Florida car accident that occurred on New Year’s Day.

According to the court’s opinion, the defendant was driving his mother’s sports car with the plaintiffs’ teenage daughter and another passenger. The driver accelerated to above the speed limit, losing control, and slamming into trees and a lamppost. The driver and another passenger survived the collision, but the plaintiffs’ daughter died at the scene. The state pursued criminal charges against the driver, and the plaintiffs filed a wrongful death suit against the driver, his mother, and the other passenger. However, they could not obtain service on the passenger and dropped him from the lawsuit.

The driver claimed he did not obtain his mother’s consent to drive any of her vehicles, including her golf cart or Porsche sports car. Moreover, the mother testified that she was aware that her son did not have a driver’s license, and she did not permit him to drive her Porsche. The mother moved for summary judgment based on her affidavit and her son’s deposition. In response, the plaintiff presented evidence that the mother permitted her son to drive her golf cart. Further, the plaintiffs contended that the mother presented conflicting evidence regarding whether she ever expressly told her son not to drive her vehicles. The plaintiffs also asked the court to continue the summary judgment motion because they were facing challenges deposing the other passenger. The mother argued that the plaintiffs were causing the delay.