South Florida Personal Injury Lawyers Blog

Florida Court Finds Medical Release Waiver to Be Invalid, Allowing Medical Malpractice Case to Proceed

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

Earlier this month, the District Court of Appeal for Florida’s Fourth Circuit issued an interesting written opinion in a medical malpractice case requiring the court to determine if a medical release waiver signed by the plaintiff should prevent the plaintiff’s medical malpractice case from proceeding to trial. Ultimately, the court concluded that the waiver’s language was vague and would not necessarily inform the signer which rights they were giving up by signing the document. As a result, the waiver was deemed invalid, and the plaintiff’s case was permitted to proceed.

The Facts of the Case

In 2013, the defendant performed spinal surgery on the plaintiff. Prior to the surgery, however, the defendant doctor requested that the plaintiff sign a medical release waiver. The waiver stated that the doctor does not carry malpractice insurance and that by signing the waiver, the plaintiff agreed not to file a lawsuit against the doctor because the plaintiff understands that the defendant “will do the very best to take care of me according to community medical standards.” The plaintiff signed the agreement, and the surgery was performed.

During the surgery, the plaintiff’s ureter was cut, causing significant injuries. Notwithstanding the medical release waiver, the plaintiff filed a medical malpractice claim against the doctor. Not surprisingly, the doctor responded by asking the court to dismiss the case based on the plaintiff’s agreement not to sue in the event anything went wrong.

Florida Court Limits Application of the “Express Assumption of Risk” Doctrine

Published on: June 15, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court issued a written opinion in a premises liability case brought by a man who tripped and fell while practicing on-stage with a church band. The case presented the court with the opportunity to discuss the “assumption of the risk doctrine” and when it is appropriate for a court to prevent a plaintiff’s case from proceeding by determining that the plaintiff assumed the risks involved with the activity that led to his injuries.

Assumption of the Risk

In some cases in which a person is injured while engaging in an activity that he or she knew to be dangerous, courts may prevent that person from holding other parties responsible for their injuries, based on the theory that the plaintiff assumed the risk of the dangerous activity. Generally, in order to establish an assumption of the risk defense, a defendant must be able to show that the injured party knew that the activity was dangerous and willingly participated in the activity despite knowledge of the risks. Assumption of the risk defenses are common in cases involving contact sports or other high-risk activities.

The Facts of the Case

The plaintiff was a member of the defendant church and also played in the church band. One day during rehearsals, the plaintiff tripped and fell on an unsecured cord that ran across the stage to power the electric bass guitar. The plaintiff filed a premises liability lawsuit against the church, arguing that the church failed to safely maintain the stage area.

Time Limit to File Wrongful Death Claim Extended When Defendant Tried to Cover Up Death

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

After a 38-year-old man was shot and killed, his mother and his five-year-old son filed survival and wrongful death claims against the shooter. The man was killed in August 2009, and on June 9, 2015, the man’s mother and the man’s then five-year-old son filed a complaint against the shooter. They alleged wrongful death based on negligence, a survival action based on negligence, wrongful death based on gross negligence, a survival action based on gross negligence, wrongful death based on battery, a survival action based on battery, and fraudulent conveyance.The defendant moved to dismiss the case, and the court granted the motion to dismiss as to the wrongful death claims because the court said they were filed too late. The plaintiff appealed the decision, and in a recent decision, a state court of appeals reinstated the claims.

Under that state’s laws, a wrongful death claim had to be filed within three years of the date of death. However, the state provided exceptions under certain circumstances. One statute provided that a wrongful death claim filed by a minor plaintiff was tolled during the period of minority. Another statute stated that if a plaintiff did not know about a claim due to an adverse party’s fraud, the time period for the claim began to run when the party discovered or should have discovered the fraud through ordinary diligence.

Errant Golf Ball Strikes Baby in Stroller on Nearby City-Owned Walking Path

Published on: June 5, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, an appellate court in California issued a written opinion in a premises liability case that was brought by the mother of a child who was struck by an errant golf ball as she was wheeling her son in a stroller on a walking path owned and maintained by the city. The appellate court hearing the case determined that the city was not entitled to government trail immunity because the dangerous hazard that caused the injury was not a condition of the trail itself.

The Facts of the Case

The walking path where the injury occurred directly abuts a private golf course. A few years before the accident, the golf course installed a fence and strategically planted large trees to decrease the likelihood that golf balls would leave the course. However, there was no evidence that the city took any precaution regarding golf balls that were hit out of the boundaries of the golf course.

The plaintiff filed a personal injury lawsuit against the city as well as the golf course. The plaintiff claimed that the city failed to take any action to remedy the known dangerous condition created by the potential of errant golf balls.

Appellate Court Allows Evidence of Out-of-Court Settlements in Medical Malpractice Case

Published on: June 1, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, one state’s appellate court issued a written opinion in a medical malpractice case that required the court to determine whether the single doctor named as a defendant should be able to introduce evidence that there had originally been several other doctors named as defendants, but they had all settled with the plaintiff before the case reached trial. Ultimately, the court determined that the contested evidence was relevant to the case and should have been admitted.

The Facts of the Case

The plaintiffs were the surviving loved ones of a man who died while he was being treated by the defendant doctor after he slipped and fell while playing racquetball. The defendant was one of several doctors who treated the plaintiffs’ loved one, and each of the other treating physicians had originally been named in the lawsuit. However, the plaintiffs agreed to settle the cases against the other physicians out of court and proceed to trial against only the defendant.

In a pre-trial motion, the plaintiffs asked the court to prevent the defendant from explaining to the jury that there were originally several other doctors named in the lawsuit, but they had reached settlements with the plaintiffs. Additionally, the plaintiffs asked the court to prevent the defendant from arguing that the subsequent acts of these other non-present doctors acted as an intervening cause of their loved one’s death. The trial court denied both of the plaintiffs’ motions, and the case proceeded to trial. The jury found in favor of the defendant, and the plaintiffs appealed.

The Dangers of Boating on Florida Waters

Published on: May 25, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Boating, like any other method of transportation, has its inherent risks. While most boats are safely constructed, and most operators are knowledgeable about how to safely operate a marine vessel, accidents can happen, especially when a boat is being operated by an inexperienced or intoxicated driver.In Florida, there is no special license needed to operate a boat. In fact, anyone born before 1988 does not need any certification to operate a boat. Those born after January 1, 1988 must obtain a Boating Safety Education I.D. card issued by the Florida Fish and Wildlife Commission. However, once obtained, this card is valid for life.

Air boat tours are popular across Florida. While air boat operators are normally experienced, in Florida, there is no requirement that these boats have any safety devices, such as seat belts, airbags, or even windshields. These boats do not have brakes and are often operated at a high rate of speed. In addition, due to the design of these boats, they are capable of suddenly stopping short if driven over dry land.

U.S. Supreme Court Rules in Favor of Nursing Home on Arbitration Issue

Published on: May 22, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Over the past few years, arbitration contracts in nursing homes have been a hot-bed of litigation across the country. Indeed, last year, a federal agency attempted to make it much more difficult for government-funded nursing homes to include arbitration agreements in their pre-admission contracts. However, since then, the nursing home industry has been successful in preventing the ultimate passage and enforcement of that rule.In the most recent development, the United States Supreme Court issued an opinion in a nursing home case siding with the nursing home. In that case, two family members filed wrongful death lawsuits against a nursing home that had cared for two of their loved ones prior to their death. Prior to the residents’ admission into the nursing home, they executed a general power of attorney in favor of the plaintiffs, giving the plaintiffs the ability to “dispose of all matters.”

The plaintiffs later placed their loved ones in the defendant nursing home. However, prior to their loved ones’ admission, the plaintiffs had to complete the pre-admission contract. One clause in that contract agreed to submit any and all claims that may arise between the parties to binding arbitration.

The Importance of Following All Procedural Requirements in Florida Personal Injury Cases

Published on: May 17, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Last month, a state appellate court issued a written opinion highlighting the importance of complying with all of the procedural requirements in a South Florida personal injury lawsuit. Ultimately, the court determined that the plaintiff did effectuate proper service on the government defendant and rejected the defendant’s appeal. However, the case should serve as a warning to would-be plaintiffs that even a single misstep may result in the dismissal of an otherwise meritorious case.

The Facts of the Case

The plaintiff was involved in an accident with a school bus. Believing the accident to be the fault of the school bus driver, the plaintiff filed a personal injury lawsuit against the driver of the bus as well as the school district that employed the driver. The plaintiff claimed that the school bus driver was negligent in operating the bus and that the school district was negligent in hiring the driver.

As is required under state law, the plaintiff set out to serve the defendants. The plaintiff hired a process-server, who went to the school district’s main building and inquired where he could deliver the service documents. The front-desk attendant directed the process-server to the HR department. Once at the HR department, the process-server met with the receptionist to the Deputy Superintendent. The receptionist called her superior, who instructed her to accept the service and said that she would come by later to pick it up. The process-server left the documents with the receptionist.

The Doctrine of Intervening Cause in Florida Personal Injury Cases

Published on: May 15, 2017 | by Friedman Rodman Frank & Estrada, P.A.

In all Florida personal injury cases, the plaintiff must prove certain facts before they will be entitled to receive compensation for their injuries. The specific elements that must be proven depend largely on the type of case, but some elements are almost universally required across all Florida personal injury cases.One of the most common – and most contested – elements in a Florida personal injury case is the element of causation. Simply stated, the element of causation requires that a plaintiff prove that the defendant’s actions were the cause of their injuries. While this sounds simple in theory, a recent case illustrates how establishing causation may not be as straightforward as it initially seems.

The Facts of the Case

The plaintiff was riding his motorcycle on the highway. When he rounded a curve, he approached another accident without warning, and he was unable to safely stop in time to avoid an accident. He ended up sustaining serious injuries as a result of the motorcycle accident.

Court-Imposed Sanctions for Failing to Comply with Discovery Requests

Published on: May 10, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When a party files a personal injury lawsuit against a defendant, the case proceeds through several stages before ultimately going to trial. One of the most important and most contentious phases in a personal injury lawsuit is the pre-trial discovery phase.During the pre-trial discovery phase, parties make requests for certain evidence from the opposing party. A party can only request relevant evidence or evidence that may give rise to the discovery of additional relevant evidence. Once a party makes a request for certain evidence, the judge will rule on the request. If the judge orders that the requested material be released, the party in possession of the evidence must comply. A failure to comply can result in sanctions.

Sanctions for violating pre-trial discovery vary, depending on the type and severity of the violation. It is not unheard of for a court to dismiss a plaintiff’s case if he or she withholds evidence from the defense. If a defendant withholds evidence, the court can prevent the introduction of other evidence or issue a fine. However, any fine imposed can only be for the amount of money the plaintiff had to expend due to the defendant’s bad faith. A recent U.S. Supreme Court case illustrates this principle.