South Florida Personal Injury Lawyers Blog

Florida Supreme Court Interprets “Amendment 7” To Provide Broad Right of Access to Medical Records

Published on: November 16, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Back in 2004, Florida citizens amended the Florida Constitution to include a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” This amendment became known as Amendment 7. In a recent Florida medical malpractice case, the state’s Supreme Court issued an opinion discussing the breadth of the amendment and whether common-law privileges held by medical providers can override the reach of Amendment 7.

The Facts of the Case

The plaintiff underwent a laparoscopic cholecystectomy procedure that was conducted by the defendant doctor. During the procedure, the plaintiff’s bile duct was severed. The plaintiff filed a medical malpractice lawsuit against the defendant, claiming that the doctor was negligent in performing the surgery. The plaintiff also named the medical center where the procedure was performed as a defendant.

During pre-trial discovery, the plaintiff requested certain documents from the defendant, including records of other adverse medical events that occurred at the defendant medical center. The defendants objected to the plaintiff’s request for discovery, claiming that several privileges attached to the documents and that therefore they were not subject to the rules of discovery.

Court Upholds Arbitration Agreement in Recent Nursing Home Negligence Lawsuit

Published on: November 13, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, an appellate court issued a written opinion in a nursing home case brought by the surviving loved ones of a woman who died while in the care of the defendant nursing home facility. The case presented a hot-button issue in many nursing home cases across the country: the enforceability of an arbitration clause that was contained in a pre-admission contract. Ultimately, the court concluded that the plaintiff was bound by the arbitration clause because the person who signed on the resident’s behalf had the authority to do so, and the clause itself was not contrary to public policy or otherwise unenforceable.

The Facts of the Case

The plaintiff was the daughter of a nursing home resident who died shortly after being admitted to the hospital while she was a resident at the defendant nursing home. The allegations were that the nursing home failed to implement a safety protocol to prevent residents from falling. The evidence presented suggested that the plaintiff’s loved one fell at least twice during her stay, resulting in injuries that worsened and eventually led to her premature death.

Prior to the resident’s admission into the nursing home, one of the resident’s daughters signed a pre-admission contract. That contract had an arbitration clause contained in it, which stated that the parties agreed to submit any claims between the two to binding arbitration, rather than handling them through the court system. At the time, the resident had executed a power of attorney document, granting her daughter power over her affairs “without limitation.”

Court Finds Hospital Lacked Knowledge of Black Ice in Parking Garage, Dismissing Plaintiff’s Premises Liability Case

Published on: November 9, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Florida landowners are responsible to maintain their property in a reasonably safe condition for those whom they invite onto the premises. This includes not just individuals, but also businesses and government entities. However, not all slip-and-fall accidents will result in the landowner being liable for the injuries of the person who was injured. In order to succeed in a Florida premises liability case, the plaintiff must be able to establish, among other things, that the defendant landowner knew about the hazard that resulted in the plaintiff’s injuries.In a recent slip-and-fall case arising out of neighboring Georgia, the court had the opportunity to discuss premises liability law as it pertained to a case involving a man who fell on a patch of black ice after exiting his car in a hospital parking garage. Ultimately, the court concluded that the plaintiff failed to meet his burden of showing that the defendant knew about the black ice. As a result, the plaintiff’s case was dismissed.

The Facts of the Case

The plaintiff was dropping his wife off at the defendant hospital for a minor medical procedure. After the plaintiff dropped off his wife, he proceeded to the uncovered top level of the hospital’s parking garage.

Can a Judge Override a Jury’s Verdict in a Florida Personal Injury Case?

Published on: November 6, 2017 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida personal injury cases, the judge’s role is to determine which evidence is admissible at trial, rule on any objections that are made during the course of the trial, and ultimately instruct the jury on the relevant law after the parties have rested. Judges also are responsible for hearing any post-trial motions and ruling on these motions.In most cases, once a jury returns a verdict in a Florida personal injury case, that decision is final. However, there are a few exceptions to that general rule. First, either party may be able to appeal a legal decision made by the judge during the course of the trial. For example, if one party believes that the court unfairly kept evidence from the jury’s consideration, they may appeal that ruling to a higher court.

Another example of this is when the trial judge determines that the jury’s verdict is against the manifest weight of the evidence. This is usually argued in a post-trial motion brought by the side that did not prevail at trial, arguing that the jury was wrong in its determination based on the evidence presented. In order to succeed in this type of claim, a party must show that the jury based its decision on evidence that did not exist or was not admitted. A recent case illustrates the courts’ general reluctance to override a jury’s verdict.

Failure to Raise an Issue at Trial May Prevent Appellate Review in Florida Personal Injury Cases

Published on: November 2, 2017 | by Friedman Rodman Frank & Estrada, P.A.

As is often the case in many of life’s endeavors, preparation is crucial to the outcome of a Florida personal injury case. While this is true across the board – from the moment the case is filed to when the jury returns a verdict – preparation is especially important when it comes to understanding the other side’s case and anticipating which issues may arise. Such preparation gives a Florida personal injury plaintiff an advantage that cannot be overstated.A recent case illustrates how an insurance company’s lack of preparation resulted in the company waiving an issue that would otherwise likely have been resolved in its favor. As a result of the company’s failure to raise the issue, the plaintiff was successful in getting an adverse lower court ruling reversed in her favor.

The Facts of the Case

The plaintiff was injured when she was involved in a car accident that was caused by another motorist. The at-fault motorist did not have adequate insurance coverage to fully compensate the plaintiff for her injuries. However, the plaintiff was covered by two other insurance policies, both of which contained underinsured motorist protection. The plaintiff’s mother had a policy with Allstate that provided $25,000 in underinsured motorist coverage. Additionally, the plaintiff’s father’s policy with Geico provided $20,000 in underinsured motorist protection.

Florida’s Recreational Use Statute

Published on: October 26, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When someone is injured on the property of another party due to some defect or hazard on the property, they may file a South Florida premises liability lawsuit against the landowner, seeking compensation for their injuries. In general, landowners owe a duty of care to most people who enter their land. The extent to which a landowner must go to provide a safe property depends heavily on the relationship between the parties and the reason why the visitor is on the landowner’s property.One question that often comes up in Florida premises liability lawsuits is whether an accident victim can recover compensation when they are hurt on another party’s land while engaging in a recreational activity, such as swimming, hiking, hunting, fishing, or boating. The answer, as with many questions in the law, is “it depends.”

Under Florida’s recreational use statute, Florida Statute 375.251, some landowners who allow others to use their property for recreational purposes are immune from liability. In order to qualify for this immunity, a landowner must show that they allowed the injured person to use their land for a recreational purpose and did not collect a fee for doing so. The burden is on the landowner to establish these elements, and a landowner’s failure to present evidence of each will result in the court declining to find that the landowner is immune from liability. A recent case illustrates how a court might analyze a recreational use defense.

Plaintiff Unintentionally Excuses Defendant in Slip-and-Fall Case

Published on: October 23, 2017 | by Friedman Rodman Frank & Estrada, P.A.

A large number of Florida premises liability cases are resolved through pre-trial settlement negotiations. Indeed, settling a personal injury case is preferable for many plaintiffs, who do not want to risk taking the case to trial, which may result in a defense verdict or an inadequate award amount. However, settlement agreements should be treated with caution. A recent appellate opinion discusses how one plaintiff’s execution of an overly broad settlement agreement actually dismissed multiple defendants from the case, despite her lack of intention to do so.

The Facts of the Case

The plaintiff was injured in a slip-and-fall accident that occurred outside an auto parts store. According to the court’s recitation of the facts, an employee of the auto parts store had recently mowed the lawn in front of the store and failed to clean up the grass clippings.

As it turns out, there was a recessed area in the pavement where a utility box sat. The grass clippings covered up this recessed area, and as the plaintiff walked past, she stepped in the hole, causing her to fall and sustain serious injuries.

State Court Rejects Risk-Utility Test in Product Liability Case Against Auto Manufacturer

Published on: October 19, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When courts consider a product liability lawsuit, they will instruct the jury on one of two available tests to determine whether the plaintiff has established their case against the defendant manufacturer. In Florida, courts use the consumer-expectation test to evaluate a plaintiff’s Florida product liability claim.The consumer-expectation test is fairly straightforward and requires jurors to ask themselves whether the product at issue performed as a consumer would expect it to perform under the circumstances. This test is generally preferred by product liability plaintiffs to the other predominant test, the risk-utility test.

Under a risk-utility analysis, jurors are asked whether the risks of the design chosen by the defendant manufacturer outweighed the utility, or benefit, the design provided. The risk-utility test also requires that the plaintiff establish that there was a reasonably safe alternative design that the defendant manufacturer could have used. Since this test places a burden on the plaintiff to establish that a reasonably safe alternative exists, this is generally a more difficult test for product liability plaintiffs to meet.

Punitive Damages in Florida Personal Injury Cases

Published on: October 16, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When someone is injured due to the negligent or intentional conduct of another person, the victim is entitled to file a Florida personal injury claim against the person or people they believe to be responsible for their injuries. If successful, an accident victim can recover compensation for their injuries.Compensation awards in personal injury cases are broken down into different categories. For example, the most common category of personal injury damages is called compensatory damages. Compensatory damages are designed to put the plaintiff back into the position where they were before the accident. Medical expenses, lost wages, and a decrease in one’s quality of life are all categories of compensatory damages. Since these damages are designed to make the plaintiff “whole” again, the focus is on the victim, rather than the conduct of the defendant.

Punitive damages, on the other hand, focus on the defendant’s conduct that resulted in the plaintiff’s injuries. Punitive damages are rare and can be significant – sometimes reaching into the tens of millions of dollars. These damages are designed to deter parties from engaging in the type of conduct that resulted in the plaintiff’s injury. As a result, punitive damages focus on the defendant’s conduct, rather than the injuries suffered by the plaintiff. Punitive damages are rare and generally are not appropriate when mere negligence is alleged. Normally, there must be a showing of intentional conduct or recklessness in order for a court to consider punitive damages.

Florida Rollerblade Injury Case Dismissed Under Recreational Immunity Statute

Published on: October 12, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Florida landowners generally have a duty to make sure that their property is safe to those whom they invite onto their property. If a landowner, including a business or government entity, fails to maintain their property, and someone is injured as a result, the injured party may be able to recover compensation for their injuries through a Florida premises liability lawsuit.There is an exception to this general rule, however, and that lies within the Florida recreational use statute, F.S. 375-251. The statute provides immunity from liability to certain landowners who open up their land for the public’s general use. In order to qualify for this immunity, a landowner must not charge a fee for the use of the land. A recent Florida appellate opinion discusses the applicability of a recreational use statute to a rollerblade injury case, finding that the plaintiff was prevented from bringing a lawsuit against the government entity he claimed was responsible for his injuries.

The Facts of the Case

The plaintiff was rollerblading on the street in Delray Beach when he encountered a pothole. Unable to maintain his balance as he hit the pothole, the plaintiff fell to the ground, resulting in serious injuries. The plaintiff filed a premises liability lawsuit against the City of Delray Beach. The plaintiff admitted that it was against the law to rollerblade in the street but nonetheless argued that the city was negligent in maintaining the roadway and letting a pothole develop.