South Florida Personal Injury Lawyers Blog

Court Affirms Judgment for Defendant in Case Filed after Fatal Skateboarding Accident

Published on: June 30, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of California recently released an opinion in which they affirmed a lower court’s ruling granting summary judgment to the defendant in a wrongful death lawsuit. The negligence suit was filed by the family members of a boy who died after striking a manhole cover and falling from his skateboard while riding on a roadway that was operated by one of the defendants. The suit alleged that the defendants negligently failed to maintain a safe roadway and should be held accountable for the damages related to the boy’s death. The district court granted summary judgment to the defendants, finding that by participating in the inherently dangerous activity of skateboarding, the boy assumed the risk that he would be injured or killed by a condition on the roadway. As a result of the state supreme court’s recent decision, the plaintiffs will be unable to collect compensation for their claim.

A Tragic Accident Results in a Boy’s Death

The plaintiffs in the case of Bertsch v. Mammoth Community Water District were the surviving family members of a boy who died in a skateboarding accident in September 2011. According to the facts as recited in the appellate opinion, the victim and his brother were skateboarding around the hilly Mammoth Lakes area while their family visited a condominium that was owned by a friend. While waiting to meet their father, the boys rode their skateboards around the roads “for fun,” and they repeatedly pushed up and rode down the same hill near the condominium complex. As the victim was descending the hill on one of these occasions, his skateboard wheels became lodged in a small gap between the roadway and a manhole cover, and he was ejected from the board. His head struck the pavement, causing a traumatic brain injury and resulting in the boy’s death.

Judgment Is Affirmed for Defendants in Plaintiffs’ Wrongful Death Lawsuit

After the boy’s death, a wrongful death lawsuit was filed by his family, alleging that the defendants maintained a dangerous condition on the roadway. Before a trial on the issues, the district court ruled that the plaintiff could not recover damages as a matter of law, since the victim had assumed the risk of serious injury or death by skateboarding for leisure on the roadway.

State Supreme Court Throws Out Jury Verdict in Premises Liability Case

Published on: June 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Appellate Court of West Virginia recently decided to reverse a judgment of over $55,000 that had been awarded to a plaintiff after a jury trial in a negligence case filed against a public parks commission by an injured plaintiff. The original verdict and award, based on the jury’s finding that the park operators had negligently failed to keep the grounds of the park safe for visitors, was reversed after the high court found that the plaintiff failed to prove the causation element of his premises liability claim. As a result of the recent ruling, the defendant has been relieved of any responsibility for the plaintiff’s injuries as a matter of law, and the plaintiff will be unable to recover compensation for his claim.

Plaintiff Falls Down a Hill after Leaning on an Unsafe Fence

The plaintiff in the case of Wheeling Park Commission v. Dattoli was a man who was injured while visiting a park operated by the defendant in September 2007. According to the facts noted in the recent opinion, the plaintiff was with his wife standing atop a hill when he leaned against a fence post to rest and put his hand on the top rail. The plaintiff testified that he briefly inspected the fence rail before leaning on it, and it appeared to be in good repair. Despite its appearance, the wooden rail had partially decayed and was not strong enough to support the man’s weight, causing it to break from the fence post and sending the man over the lower railing and down the hill, causing him to seriously injure his shoulder.

Plaintiff Files a Personal Injury Lawsuit and is Awarded Damages in a Jury Trial

The plaintiff filed a premises liability lawsuit against the defendant, alleging that their negligence in failing to properly keep up the fence or warn visitors that they shouldn’t lean on it was the cause of his injuries. At trial, the plaintiff called the park’s director of operations as a witness. The witness testified that the wooden fence was at least 17 years old at the time of the accident and could produce no evidence that the fence had been repaired or maintained since it was installed. Based on the evidence produced at the trial, a jury awarded the plaintiff over $55,000 for his medical expenses and lost wages as a result of the injuries he suffered.

Court Reverses Judgment for Defendants in Wrongful Death Medical Malpractice Case

Published on: June 23, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Oklahoma recently ruled to reverse a lower court’s decision to grant summary judgment to the defendants in a medical malpractice case that was filed by the surviving family members of a woman who died while hospitalized in 2006. The state supreme court ruled that the lower court’s findings regarding the admissibility of the plaintiffs’ proposed expert testimony were made in error, and the case should have proceeded to trial with the plaintiffs’ proposed expert witness. As a result of the latest ruling, the case will be remanded to the district court to proceed toward a settlement or trial.

Plaintiffs’ Mother and Wife Died after Being Admitted to Hospital with Intestinal Hernia

The plaintiffs in the case of Nelson v. Enid Medical Associates were the husband and son of a woman who died in July 2006, two days after arriving at the emergency room with severe abdominal pain. According to the facts discussed in the appellate ruling, the woman was treated upon her arrival at the emergency department by one of the defendants, who diagnosed her with an incarcerated hernia and possible bowel obstruction. The emergency room physician contacted a second defendant, the woman’s primary physician, who advised they consult with a surgeon to treat the hernia.

The surgeon, also a defendant in the case, arrived and manually reduced the woman’s hernia. Shortly thereafter, the woman’s vital signs became unstable, and she required surgery to address her bowel obstruction. After the surgery, the woman’s primary physician adjusted her medications, which allegedly caused her blood pressure and pulse to drop and resulted in her eventual death.

State Court Affirms Award to Student Hit by Car While Boarding School Bus

Published on: June 20, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Delaware Supreme Court recently released a decision in which they affirmed a lower court’s ruling that allowed a plaintiff to make a claim against the personal injury protection (PIP) insurance coverage of a school bus for injuries she sustained when another vehicle hit her after she had been signaled by the bus driver to cross the street and board the bus. The decision noted that school buses play a unique role in American society and operate under a specific set of rules and regulations regarding how passengers and other vehicles must act while the bus is in operation. As a result of the recent ruling, the plaintiff will be compensated for her injuries from the PIP benefits that covered the school bus at the time of the accident.

The Plaintiff Is Injured by another Vehicle While Crossing the Street to Board the School Bus

The plaintiff in the case of State Farm v. Buckley was a student who intended to take the bus that was insured by the defendant to school on a day in March 2012. After the bus driver initiated the red flashing lights and stop sign to signal other vehicles to stop, the driver signaled the plaintiff to cross the street and board the bus. While she was crossing the street at the direction of the bus driver, another vehicle failed to stop and struck the plaintiff, causing injuries.

The Plaintiff’s PIP Claim with the Insurance Covering the School Bus Is Initially Denied

After sustaining her injuries, the plaintiff made an insurance claim with the defendant, who insured the school bus. Under Delaware law, PIP benefits are applicable to any occupant of a motor vehicle involved in an accident, as well as any other person injured in an accident involving the insured vehicle, other than an occupant of another vehicle. In response to the initial claim, the defendant refused to extend the PIP benefits to the plaintiff, stating that the plaintiff’s injuries were not caused by an accident that involved the covered vehicle.

State Supreme Court Affirms Ruling in Favor of Drinking Establishment in Negligence Lawsuit

Published on: June 16, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Nebraska recently released a decision in which they upheld a lower court’s ruling that granted summary judgment to a drinking establishment in a negligence lawsuit that had been filed by a man who was injured after a disgruntled patron returned to the bar after being forcibly ejected and struck the plaintiff with his vehicle, causing serious injuries. The plaintiff had alleged that the bar owners failed to uphold their duty to protect him from the conduct of the disgruntled patron, although the lower court disagreed. As a result of the appellate ruling, the plaintiff will be unable to recover damages from the drinking establishment, although he may still hold the disgruntled patron accountable for damages that resulted from the assault.

The Plaintiff Was in the Wrong Place at the Wrong Time and Suffered Serious Injuries as a Result

The plaintiff in the case of Pittman v. Rivera was a patron at a drinking establishment owned by the defendant, and he was struck by a car in the parking lot as he left the bar. Although the plaintiff had not been involved in any initial confrontation, the vehicle was being driven by a man who had been forcibly ejected from the bar for fighting earlier in the evening. According to the the facts recited in the appellate opinion, the driver of the vehicle was involved in an altercation with another patron and was thrown out of the bar by security and driven home by a designated driver, only to return shortly thereafter in his own vehicle. The driver was again escorted off the premises by security, after which he entered his vehicle and began driving recklessly, eventually driving toward a crowd of people that included the plaintiff. The plaintiff was warned verbally by security to get out of the way, but he was unable to avoid being hit by the speeding car.

State Supreme Court Rules that Post-Mortem Misconduct by Doctor Is Medical Malpractice, Reverses Damages Award

Published on: June 13, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Texas recently released an opinion holding that a defendant’s actions in improperly obtaining a woman’s consent for a private autopsy of her husband, who died while under their care, was a medical malpractice claim. Although the ruling in the case of Christus Health v. Carswell may arguably expand the definition of medical malpractice within the state to include actions taken after a patient’s death, the ultimate result of the court’s ruling was to reverse a judgment entered in favor of the plaintiff. The judgment was reversed because the court found that the claims alleging the post-mortem malpractice were not made within the two-year statute of limitations for health care liability claims in the state of Texas.

Plaintiff’s Husband Found Unresponsive in Hospital Bed after Receiving Narcotic Pain Medication from Doctors

According to the facts discussed in the court’s opinion, the case was initially filed after the plaintiff’s husband was found dead in his hospital bed after being admitted to the hospital with complaints of severe pain. He was initially prescribed narcotics to treat his pain, but they were discontinued after he suffered an adverse reaction. Subsequently, he was given additional pain medication by a different medical provider after the severe pain returned, and he was found dead shortly thereafter.

After her husband’s death, the plaintiff requested that an autopsy be performed at the county medical examiner’s office, although she was told that the medical examiner’s office declined to perform the autopsy. A subsequent autopsy performed at another facility operated by the defendant failed to include a toxicology screening. The plaintiff alleged that the failure to include a toxicology screening in the autopsy prevented the autopsy from determining if a drug overdose or adverse reaction contributed to his death.

Court Rules That Nursing Home Defendant Waived Right to Compel Arbitration

Published on: June 9, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of South Carolina recently released a decision reversing a lower appellate decision that determined the defendant nursing home maintained their right to compel arbitration of the plaintiff’s wrongful death claim against them, filed on behalf of the plaintiff’s deceased mother. The state supreme court determined that by litigating several issues both before and after the decedent’s passing, the defendant had given up their right to enforce an arbitration agreement signed by the plaintiff when her mother moved into the nursing home.The Plaintiff’s Mother’s Health Declined Quickly after Moving into the Nursing Home

The case of Johnson v. Heritage Healthcare was filed based on the plaintiff’s mother’s quickly deteriorating health and eventual death while living in a nursing home operated by the defendant. According to the facts recited in the supreme court opinion, the plaintiff’s mother was in good health when she moved into the home, but her condition dramatically worsened within six months of moving in. The plaintiff alleged that the defendant’s negligence resulted in her mother’s poor health and eventual death, and she filed a wrongful death lawsuit against them after her mother’s passing.

Prior to the Wrongful Death Lawsuit, the Plaintiff Sought Her Mother’s Medical Records from the Defendant

After her mother’s condition worsened but before her death, the plaintiff filed an action against the defendant, seeking her mother’s medical records to determine why her health had deteriorated so quickly while under the defendant’s care. Although the plaintiff had signed an agreement to pursue claims through arbitration rather than in a state court proceeding, the defendant responded to the plaintiff’s claims in state court. The defendant vehemently resisted the plaintiff’s attempt to access her mother’s medical records, refusing to turn them over after the court ordered that they do so. Until her mother died, the plaintiff was unable to access her medical records in spite of the court’s order compelling the defendant to release them.

Appellate Court Orders District Court to Allow Defendant’s Medical Expert to Examine Plaintiff in Personal Injury Case

Published on: June 2, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Texas recently released an opinion and issued a rarely utilized type of order allowing an expert retained by the defense in a personal injury lawsuit to perform a medical examination on the plaintiff during an ongoing premises liability lawsuit. The defense’s request, which was previously denied by the trial court, was made to allow the defense to present the most credible responses to the plaintiff’s claims at trial. Since the high court’s order was issued in a proceeding that is ongoing, the plaintiff’s claim for damages may still prevail, although he will be unable to prevent the defendant’s proposed expert from performing a medical examination on him before the case proceeds to trial.

The Plaintiff Was Injured Outside a Grocery Store Operated by the Defendant

The plaintiff in the case of Rodriguez v. H.E.B. Grocery Company filed a personal injury lawsuit after he alleged that he was injured when he tripped on an unsecured plate in the parking lot of a property that was operated by the defendant. In response to the plaintiff’s lawsuit, the defendant retained a medical expert to ascertain the source of the plaintiff’s alleged injuries and offer a medical opinion as to whether the injuries were caused by the plaintiff’s fall on the defendant’s property. After reviewing the medical records of the plaintiff but without performing a physical examination on him, the defendant’s expert offered a report that concluded the plaintiff’s injuries were likely the result of a pre-existing condition, rather than the injuries sustained on the defendant’s property, as the plaintiff alleges.

The Plaintiff Also Retains an Expert Who Performs a Physical Examination

In addition to the medical expert retained by the defense, the plaintiff also hired a doctor to serve as an expert witness and offer an opinion on the source of the plaintiff’s injuries. The plaintiff’s expert performed a medical examination and would presumably testify that the plaintiff’s injuries were caused by the slip and fall on the defendant’s property. After the plaintiff’s expert was proposed to the court, the defendant requested that their expert be permitted to perform a physical examination on the plaintiff, arguing that a jury would give more weight to the plaintiff’s expert testimony merely because he was able to perform a full physical examination. The district court denied the defendant’s request, leading them to file an emergency appeal to the state supreme court.

Plaintiff’s Underinsured Motorist Claim Denied by Appellate Court

Published on: May 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The U.S. Court of Appeals for the Seventh Circuit recently released an opinion affirming a lower court’s ruling against the driver and two passengers involved in a car accident. The plaintiffs alleged that the settlement they received from the at-fault driver was not sufficient to cover their damages, and they sought additional relief from the insurance company covering the driver of the car they occupied. The plaintiffs attempted to use the underinsured motorist coverage included in the driver’s insurance policy to contribute to their relief, but the district court and Seventh Circuit agreed with the defendant, holding that the uninsured motorist coverage under which the claim was filed did not apply.

Plaintiffs Are Injured after Another Driver Runs Through Stop Sign, Causing a Four-Car Accident

The plaintiffs in the case of Trotter v. Harleysville Insurance Company were injured when the car they were occupying was struck at an intersection by another vehicle that drove through a stop sign. After the accident, the plaintiffs filed a personal injury lawsuit and reached a settlement with the insurance company representing the driver of the vehicle that caused the accident.

The settlement that was reached awarded a total of $500,000 to the three plaintiffs, which was shared based on the injuries each had sustained in the crash. The $500,000 settlement was for the single-accident policy limit of the liability insurance coverage, although the plaintiffs maintained after accepting the settlement that they were not made whole by the settlement and suffered more harm that should be compensated.

Settlement Reached in Joan Rivers Medical Malpractice Case

Published on: May 25, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a settlement was announced in the wrongful death and medical malpractice case filed by the family of deceased comedienne Joan Rivers. The lawsuit was based upon her 2014 death at an outpatient surgery center in New York City. Although the exact terms and financial amount of the settlement have not been announced, the Rivers family’s attorney has said it was “substantial.” Since the case was settled, and the doctors and clinic accepted responsibility for Ms. Rivers’ death, there will not be a trial.

Ms. Rivers Dies After Seeking Treatment and a Routine Procedure at the Defendant Clinic

According to a New York Times article discussing the settlement, Joan Rivers arrived at the Yorkville Endoscopy Center in Manhattan on August 28, 2014, complaining of a hoarse voice and sore throat. Doctors for the center decided to have her undergo an endoscopy, which is a diagnostic procedure of the upper digestive tract and requires a patient to undergo anesthesia.

According to the article, the main operating physician ignored warnings that Ms. Rivers was at risk of having her airways blocked by severely swollen vocal chords. Minutes later, her airways become obstructed, and she stopped breathing, but the doctors were unprepared for emergency intervention to relax her vocal chords or puncture a hole in her throat to allow breathing. The doctors in attendance called 911, and Ms. Rivers was taken to a hospital for emergency treatment, but she had gone into cardiac arrest by that point and was unable to recover.