South Florida Personal Injury Lawyers Blog

Florida Medical Malpractice Cases May Be Dismissed for Failure to Obtain a Supporting Medical Expert’s Opinion

Published on: April 3, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases comprise a large portion of the cases that are filed in Florida courts each year. To help courts sort through the claims, and to ensure that only meritorious claims are presented to the court, the Florida legislature has implemented a requirement that all medical malpractice lawsuits must be filed with an accompanying certificate of counsel. The certificate must state that counsel has conducted a reasonable investigation into the case and that the plaintiff’s theory of liability is supported by at least one medical expert’s opinion. A failure to file this certificate may result in the dismissal of an otherwise meritorious case.A recent decision issued by a Vermont appellate court illustrates what can happen if a plaintiff fails to file the required certificate.

The Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after ingesting a lethal combination of prescription and non-prescription medication. After the plaintiff discovered how her loved one had died, she filed a wrongful death lawsuit against the doctor who had prescribed the deceased woman the prescription medication. According to the court’s opinion, the doctor had prescribed several different types and doses of opioid medication.

Florida Appellate Court Invalidates Arbitration Agreement, Rejecting Nursing Home’s Argument

Published on: March 30, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court handed down a decision in an interesting nursing home negligence case, requiring the court to determine the validity of an arbitration contract signed by a deceased resident’s daughter. The court ultimately rejected the nursing home’s argument that, since the resident was a third-party beneficiary of the admission contract, the resident should be bound by the contract despite her daughter’s lack of legal authority to enter into the contract on behalf of her mother.

A Daughter Signs a Contract on Behalf of Her Incompetent Mother

The resident’s daughter was helping her incompetent mother find a nursing home. After the daughter settled on the defendant nursing home, she signed an admission contract on behalf of her mother. Part of that admission contract was an arbitration agreement. The arbitration agreement waived the mother’s right to use the court system if anything should happen in the future giving rise to a personal injury or wrongful death claim.

Unfortunately, the resident was injured while at the nursing home and later died from complications related to that injury. The resident’s estate filed a wrongful death lawsuit against the nursing home, arguing that the nursing home was responsible for the resident’s injuries and subsequent death.

Appellate Court Refuses To Consider Evidence Presented for the First Time on Appeal

Published on: March 27, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Rhode Island appellate court issued a written opinion discussing principles that are important to understand for anyone considering filing a personal injury case in South Florida. The case arose out of a slip-and-fall accident that occurred in a public park. The issue for the court to decide was whether evidence of the city’s knowledge of the dangerous condition was admissible when it was presented to the court for the first time on appeal. The court held that the evidence, as well as any argument stemming from the evidence, was not admissible because it was not presented to the trial court.

A Boy Breaks His Leg While Playing Baseball

The plaintiffs’ son was playing baseball in a public park that was owned and operated by the defendant city. During the game, the plaintiffs’ son slid into home plate and got his lower leg stuck under the base. As he stood up, he broke his leg in two places. The plaintiffs filed a premises liability lawsuit, claiming that the city was negligent in failing to safely maintain the park, including the home plate where their son was injured.

The defendant city claimed that it was immune from liability under the recreational use statute, which protects landowners that allow others to use their land for recreational purposes and do not charge a fee for doing so. The plaintiffs made only a broad objection to the applicability of the recreational use statute, without explaining the basis for the objection. The court ultimately granted the city’s motion for summary judgment, and the plaintiffs appealed.

Plaintiffs with Foreign Object in Body Always Entitled to Presumption of Negligence, Florida Supreme Court Holds

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

The Florida Supreme Court recently determined that a plaintiff who undergoes a procedure and has a foreign object left in their body is always entitled to a presumption of negligence. Before this decision, a federal appeals court had decided that a plaintiff was not entitled to the presumption where direct evidence of negligence exists. The Florida Supreme Court’s decision changed in this most recent opinion, making it easier for Florida plaintiffs to recover.

Facts of the Case

In 2011, a man was admitted to a hospital for a surgical procedure. During the procedure, the surgeon inserted a drainage tube into his abdomen. These tubes are normally removed after surgery. The tube was removed a few days later, but a section of the tube was accidentally left inside his abdomen.

After the man began experiencing pain in his abdomen, a CT scan showed that the section of the tube was still in his body. The man then had a second surgery to have the tube removed.

Florida Appellate Court Upholds Defense Verdict in Car Accident Case

Published on: March 20, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court issued a written opinion in a personal injury case brought by a motorist who was rear-ended by another driver. The court ultimately affirmed the jury’s verdict in favor of the defendant despite the fact that the defendant driver admitted that he was at fault for causing the accident. The court based its opinion on the fact that the jury was presented with conflicting evidence as to the seriousness of the collision, and therefore the jury was free to find that the collision was not the cause of the plaintiff’s injuries.

The Facts of the Case

The plaintiff was driving to the gym when he was struck from behind by the defendant, who was driving a pick-up truck. The plaintiff did not immediately go to the hospital, but went the next day. After being seen by a doctor, the plaintiff was prescribed pain medication and completed three months of physical therapy. The plaintiff filed a personal injury case against the defendant, seeking compensation for his medical bills as well as for his lost wages.

Both the plaintiff and the defendant testified at trial, and offered different versions of what happened on the day of the accident. The plaintiff testified he was completely stopped when the defendant rear-ended him, and that he had to “brace” himself to prevent his head from striking the steering wheel. He explained that his car suffered various types of damage as a result of the collision.

Court Holds Bus Driver Can Be Held Strictly Liable After She Became Suddenly Unconscious on School Trip

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

In a recent case, one state’s supreme court considered whether a high school bus driver could be held strictly liable after she suddenly lost consciousness while behind the wheel. The driver was taking students back from a high school band competition when she experienced a sudden and unforeseeable loss of consciousness, causing the bus to roll over. Several passengers were injured and filed a lawsuit against the driver. After filing the lawsuit, the passengers argued that they were entitled to summary judgment in their favor and that the insurance company was liable for their injuries under strict liability.A state law required drivers to have motor vehicle liability insurance policies to “cover damages or injury resulting from a covered driver of a motor vehicle” who suddenly and unforeseeably becomes incapacitated. The passengers argued that the state law meant that they were not required to prove negligence when someone suddenly loses consciousness, and that the insurance company was strictly liable in those cases. The insurance company argued that the statute only meant that insurance had to be provided for those circumstances.

Florida Woman Files Claim Against Bank After Falling in Hole in Construction Area

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

A Florida appellate court recently considered whether a bank could be held liable after a woman fell in a hole in a construction zone on the bank’s property. The woman had driven to the bank to make a deposit. When she arrived, she saw the bank was closed and decided to use the bank’s outdoor ATM. She parked her car and saw that the area was under construction with a barricade in front of the ATM. The woman says there was a sign with an arrow directing people to walk around the barricade. She followed the directions, but as she was walking around the barricade, she stepped in a hole, causing her to fall and break her foot and her leg. She said did not see the hole, but admitted that there was nothing preventing her from looking down and seeing the it.The woman filed a claim against the bank and its general contractor, alleging a breach of duty to warn and a breach of duty to maintain a safe location. The defendants claimed they were entitled to summary judgment under the obvious danger doctrine. The woman argued they were not entitled to summary judgment because the condition was not open and obvious.

Court Characterizes Doctor’s Office Slip-and-Fall Accident as a Medical Malpractice Incident

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

Earlier this month, a West Virginia appellate court issued a written opinion in a slip-and-fall case illustrating one of the difficulties plaintiffs may encounter when their injury occurs at a hospital or doctor’s office. The issue in the case was whether the plaintiff’s slip-and-fall case should have been characterized as a premises liability case or a medical malpractice case. Ultimately, the court held that since the injury occurred while the plaintiff was seeking “health care related” services, the case was properly considered a medical malpractice case.The case involved an elderly woman who accompanied her husband to an urgent care facility. After the couple arrived and checked in, they were shown to the examination room by a medical assistant. The medical assistant instructed the patient to get onto the examination table and wait for the doctor to arrive. As the man attempted to climb onto the table, he fell, landing on his wife. Shortly after the incident, the man died from complications related to the injuries he sustained in the fall.

The man’s wife filed a personal injury case against the urgent care facility under a premises liability theory. However, the urgent care facility claimed that the case should have been brought under the state’s medical malpractice statute, arguing that it was “related” to the provision of health care services. The court agreed.

Study Shows Increase in Car Accident Deaths in 2016

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

In Florida, as in any other state, all drivers have a duty to drive in a careful and prudent manner so that they can avoid endangering others’ persons or property. If a driver breaches that duty and injures someone, the driver may be held liable for injuries and other damages. Whether a driver was operating the vehicle reasonably depends on the circumstances of each case. For example, traveling at the posted speed limit may be reasonable under good weather conditions, but it may be unreasonable in a snow storm.Florida law requires drivers to carry at least $10,000 in personal injury protection coverage. This covers medical costs up to the policy amount in the event of an accident, regardless of who was at fault. Drivers also must have a minimum of $10,000 in coverage for property damage. However, in the event of a serious accident, these minimum amounts often do not cover all of the damages an injured person incurs.

Motorist Deaths Increased by 6% in 2016

Data released by the National Safety Council showed that motor vehicle accident deaths in the U.S. rose 6% in 2016 as compared to 2015. According to one news source, the numbers increased 14% compared to data from 2014. The National Safety Council’s numbers are similar to those found by the National Highway Traffic Safety Administration, which found an 8% rise in accident deaths in the first nine months of 2016. Motor vehicle accident deaths amounted to about 40,200 in 2016, which was the first time since 2007 that they were over 40,000.

Employer’s Failure to Conduct Thorough Background Investigation May Be Basis for Liability in Employee’s DUI Accident

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

In a recent case, a state appellate court considered whether a company could be held liable after an employee caused an accident in a company car while driving drunk. According to the facts as laid out in the court’s opinion, the employee received permission to use a company car on a weekend to move a mattress into a new home, even though this was a violation of company policy. The employee drank several alcoholic drinks on the day he borrowed the car and then collided with the plaintiff’s car.The plaintiff brought a lawsuit against the employee and also brought a claim against the company for negligent entrustment. A trial court first heard the case and granted summary judgment to the company on the negligent entrustment claim. It concluded the employer did not know the employee had a pattern of reckless driving, since the employer only knew the employee had one prior DUI conviction and was not aware he had additional DUI convictions.

The plaintiff appealed the decision. He argued summary judgment was improper because the court should have considered whether the company had a duty to investigate the employee’s driving background more thoroughly. The appeals court agreed. It noted that when the company hired the employee, he listed a 1990 conviction for possession of cocaine, but he omitted multiple prior DUI convictions. However, the employee said he told the company about his history of drugs and alcohol, and he also told the company his license was reinstated in 2010 after it was suspended for a DUI conviction. The company did a background investigation of the employee before hiring him. The investigation showed a clean driving history, but it only showed infractions for the previous three years, and his federal criminal history did not show any convictions.