South Florida Personal Injury Lawyers Blog

Burden of Proof and Nursing Home Agreements

Published on: April 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed an order that granted a retirement home’s motion to compel arbitration. These motions are fairly common in nursing home abuse or nursing home negligence cases. Often a nursing home requires incoming residents to sign an arbitration agreement before being admitted and this agreement requires the resident to submit any dispute to a particular arbitrator and set of arbitration rules. Issues arise when the arbitration agreement requires a resident to subscribe to rules that impact their ability to recover for serious losses under Florida law.

In Florida, an arbitration agreement can be found contrary to public policy where the agreement substantially limits remedies set forth under the Nursing Home Residents Act (NHRA) or Assisted Living Facilities Act (ALFA). Under NHRA, any claim alleging a violation of rights or negligence causing injury or death to someone living in a nursing home must be proven by a preponderance of the evidence. A claimant must show (1) nursing home or other defendant’s duty to the resident, (2) breach of duty, (3) the breach is a legal cause of loss or injury or other damage to the resident, (4) actual loss, injury, death or damage due to the breach.

In this case, the plaintiff had signed an arbitration agreement that required arbitration by the American Health Lawyers Association under its alternative dispute resolution rules. She signed it in order to be admitted to the residential facility.

Florida Court Takes on Bahamian Food Poisoning Case – Howard v. Kerzner

Published on: April 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

As our society becomes increasingly mobile, it’s likely that courts will be tasked more frequently to resolve legal disputes among parties in different states. The decision on which state’s laws apply to a given case is an important one. As the U.S. District Court for the Southern District of Florida explains in Howard v. Kerzner, it can even make or break the case.

Ms. Howard, who lives in North Carolina, sued Kerzner International Limited, alleging that she suffered food poisoning while dining at the Mesa Grill during her stay at Atlantis Resort on Paradise Island in the Bahamas. Specifically, she claimed that the restaurant served her fish containing ciguatoxins, which the court said are natural toxins found in tropical fish and can cause food poisoning-like symptoms when consumed. Kerzner, a Bahamas-based company, owns and operates the resort and Kerzner asserted that its employees caught and prepared the fish. She alleged claims for strict products liability, and breach of express and implied warranties.

The District Court began by explaining that Bahamian law applies to the case, even though it was proceeding in Florida. “Unless another state has a more significant relationship, the local law of the state where the injury occurred determines the rights and liabilities of the parties.” The Court wrote, quoting the State Supreme Court’s 1980 decision in Bishop v. Florida Specialty Paint Company.

Discovery of Adverse Medical Incidents in Florida

Published on: April 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

For years, public policy in Florida allowed doctors unfettered authority. In 2004, voters approved Amendment 7, which created a constitutional right for patients to know about a health care facility or provider’s adverse medical incidents, including medical malpractice. This right is important, but it is not total, and it remains important for plaintiffs to tailor their discovery requests appropriately.

In a 2013 case a medical center sought review of an order that it produce specific documents in a medical malpractice lawsuit. The case arose when the plaintiff sued the medical center and others in association with her surgery. During the discovery phase, the plaintiff requested all documents related to adverse medical incidents. She cited to Amendment 7.

The medical center asked the court to issue a protective order. It cited various privileges. The court ordered the medical center to produce any documents that referenced “adverse medical incident” regardless of how the document was labeled. It ignored the potential for violating attorney-client and other privileges. It denied the medical center’s request for a protective order. The defendant filed privilege logs in response.

Unanticipated Seizure and Florida Car Accidents

Published on: April 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Foreseeability plays a part in analyzing whether a defendant is responsible and should be held accountable for a plaintiff’s injuries. In a recent case, Jordan Marcum, her employer and her liability insurer appealed an adverse judgment arising from a car accident that caused personal injuries to Angela Hayward.

The case arose because Marcum had lost consciousness while driving during a seizure. She was assistant manager of a poll company and driving the company vehicle in the course and scope of her employment. Her coworker was riding in the passenger seat.

The woman later testified that she had blacked out, woken for a moment and blacked out again. Her next memory was of the paramedics. Her coworker testified he tried to depress the brake pedal with his hand, but couldn’t reach it with his seatbelt on. Within 15 seconds, he felt the accident’s impact.

Florida Supreme Court Reviews Tomahawk Case

Published on: April 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent Florida Supreme Court case, the Court reviewed an appellate opinion previously covered on this blog. In the case a man (Dennis Dorsey) brought a personal injury lawsuit for injuries after a bar fight against the man he was with at a neighborhood bar (Robert Reider). The fight arose while Dorsey, Reider and Reider’s friend Noordhoek were drunk over the legal limit. Reider said he wanted to fight everyone and Dorsey told him off before walking out of the bar.

Rider and Noordhoek followed him and trapped him between a truck and an adjacent car. Noordhoek took a tomahawk used for work out of Reider’s car. When Dorsey tried to escape, Noordhoek hit him in the head with the tomahawk. Then Noordhoek and Rider fled.

Dorsey sued for his personal injuries. Reider moved for directed verdict, but was denied. The jury returned a verdict for Dorsey. Reider appealed.

Written Interrogatories in Florida Slip and Fall Cases

Published on: April 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

An important aspect of the discovery process during litigation is the preparation of responses to interrogatories. A common practice among plaintiffs’ lawyers is to ask their clients to prepare handwritten responses to the defendant’s discovery. These responses are solely for the attorney’s benefit. Certain interrogatories may ask for an opinion or contention not within the personal knowledge of the plaintiff, though it is within the knowledge of the attorney. Therefore a written interrogatory response may differ from a draft response prepared by a plaintiff for her attorney.

In a recent appellate decision on a discovery battle, a plaintiff sought review of a court order compelling her to produce privileged attorney-client communications. The case arose because the woman filed suit against a supermarket alleging that she had suffered personal injuries after a slip and fall in a large puddle at the store.

The market had served a set of written interrogatories on the plaintiff during the discovery process. The plaintiff had answered them and verified them as true and correct to the best of her knowledge. One of the interrogatories asked her to provide the facts that formed the basis for her allegation that the defendant market knew of the dangerous condition.

Unconscionable Arbitration Agreements for Florida Nursing Homes

Published on: March 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a healthcare and rehabilitation center appealed a trial court’s order denying its motion to dismiss and compel arbitration. The case arose out of a case in which a wife admitted her husband to the rehabilitation center’s nursing facility in accord with a durable power of attorney he had signed. He lived there for two years. Days after he was discharged, the husband died.

The wife sued as personal representative of his state for violating his nursing home residents’ rights, negligence and wrongful death. The nursing facility moved to compel arbitration. The wife had signed an arbitration agreement when her husband was admitted. Signing the arbitration agreement was a condition of being admitted into the nursing home.

The trial court, however, denied the nursing facility’s motion to compel arbitration. It found that the durable power of attorney did not give the wife authority to sign the arbitration agreement on behalf of her husband. It also found the agreement was substantively unconscionable because the estate didn’t have the ability to pay arbitration costs, and that is was procedurally unconscionable in the way the agreement was presented to the wife.

Uninsured Motorist Coverage in Florida

Published on: March 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Under section 627.727(1) of the Florida Statutes (2007), car insurers must offer uninsured motorist coverage unless an insured expressly rejects coverage. This includes coverage for an underinsured motor vehicle. This coverage is intended to protect those that are legally entitled to recover damages for injuries caused by uninsured or underinsured motorists.

In a recent case, the Florida Supreme Court weighed in on the question of whether an insured person forfeits benefits without regard to prejudice under an uninsured motorist insurance contract if he breaches a compulsory medical examination provision. It also answered the secondary question of who has the burden of pleading and proving prejudice.

The case arose out of a 2006 traffic accident involving Robin Curran and an underinsured motorist. Curran and the motorist settled their case and the settlement was approved by Curran’s insurer State Farm. Curran asked State Farm for her $100,000 underinsured motorist policy limits and offered to settle with State Farm if it tendered the policy limits by a specific date. The plaintiff noted her damages were actually about $3.5 million because she had reflex sympathetic dystrophy syndrome. State Farm tried to schedule a compulsory medical exam based on a provision of the policy requiring it.

Indemnification Agreements in Florida Personal Injury

Published on: March 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a hotel appealed after the court entered summary judgment in favor of Lufthansa on its cross-claim for indemnification. Lufthansa is a German airline that brings travelers to Miami among other locations. Lufthansa had drafted and contracted with the hotel in 2003 so that the hotel would provide lodging for the airline’s flight attendants on overnight layovers.

In 2008, flight attendant Juergen Wauschke was staying at the hotel because of the agreement. When he tried to open his 7th floor hotel room window, the window fell out of its frame and struck another hotel guest Jaime Young who was sitting below his bedroom.

Young sued the hotel for vicarious negligence and added Lufthansa and the engineering firm responsible for design and maintenance. The claim against Lufthansa was based on the theory that Lufthansa had vicarious liability for its employee Wauschke’s negligence.
Lufthansa requested indemnification from the hotel based on the written agreement. The indemnification clause of the written agreement stated that the hotel would indemnify and hold Lufthansa harmless from liabilities including injury and death that arose from the hotel’s negligence or willful misconduct.

Victory for Medical Malpractice Wrongful Death Claimants

Published on: March 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Florida Supreme Court issued a major decision regarding statutory caps on non-economic damages in medical malpractice cases. The case arose when a 20-year-old pregnant woman, the dependent of someone in the Air Force, was admitted to a government medical center with severe preeclampsia. The doctors induced labor and she delivered her child vaginally. However, she lost a lot of blood and didn’t deliver the placenta. She went into shock and cardiac arrest, lost consciousness and died.

Through her estate, her parents and her baby’s father sued for wrongful death and medical malpractice against the United States in the United States District Court for the Northern District of Florida. At a bench trial, the court determined that their economic damages were $980,462.30. Their noneconomic damages (items such as pain and suffering) were $2 million. The district court relying upon section 766.118(2), which covers wrongful death noneconomic damages, capped the damages at $1 million.

The plaintiffs appealed to the Eleventh Circuit Court of Appeals, which affirmed the application of the cap. The appellate court ruled there was no controlling precedent and therefore certified four questions of law for the Florida Supreme Court to answer. These questions included whether the cap violated due process under the Florida Constitution, whether it violated the right of access to the courts, whether it violated the right to trial by jury, and whether it violated separation of powers.