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Florida has a very complshutterstock_92427613-300x192ex medical malpractice statutory scheme that an injured victim must follow in order to bring a case. Codified under chapter 766, the medical malpractice statutes require great skill to navigate. Amongst a host of other requirements, an injury victim must send relevant data to an expert medical professional in the same or similar specialty as the health care provider who you are going to bring suit against. That expert must then issue an affidavit verifying the negligence. The expert affidavit, along with several other documents, must then be served on the defendant doctor as part of a Notice of Intent to Initiate Medical Malpractice Litigation. All of the above must be accomplished within the two-year Statute of Limitations that Florida law affords victims of medical malpractice.

The recent case of Bay County Board of Commissioners v. Seeley provides us with a nice look at just how complex medical malpractice litigation can be. In Seeley, the plaintiff was injured when she fell off a stretcher while being wheeled by paramedics from her home to the awaiting ambulance. At first, she filed a lawsuit without complying with the medical malpractice pre-suit screening process because she did not believe her case was for medical negligence. That lawsuit was dismissed as the trial court determined her allegations were in fact medical malpractice in nature and thus she had to comply with the requirements of chapter 766.

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In an exciting win for Florida personal injury plaintiffs and their physicians, the state’s Supreme Court issued a recent landmark decision in the case of Worley v. Central Florida Young Men’s Christian Ass’n, Inc. The main issues in Worley were the permissibility of discovery as to who referred a plaintiff to her treating physicians and the financial relationship between those treating physicians and the plaintiff’s attorney. These hotly contested issues permeate many personal injury cases. In a very cogent opinion, the Supreme Court resolved these long-standing conflicts in favor of Florida personal injury plaintiffs by fully restoring the attorney-client privilege and making treating physician financial discovery off-limits.

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shutterstock_233095072-300x201As the holidays approach, many of us will be attending parties at restaurants and having parties at our homes. At most of these parties, alcoholic beverages will be served. So, what are the legal ramifications for a restaurant or homeowner if someone leaves their property intoxicated and causes serious injuries to themselves or others? Florida’s Dram Shop law, codified as Fla. Stat. § 768.125, provides only very limited scenarios under which a business or homeowner can be held liable for the tortious acts of an intoxicated person such as a drunk driver.

Under Florida’s Dram Shop law, there are only two scenarios where a business or homeowner can be successfully sued for the actions of an intoxicated person. Those scenarios are: (1) the willful and unlawful selling or furnishing of alcoholic beverages to a person not of legal drinking age; and (2) knowingly serving a person alcohol who is “habitually addicted to the use of alcoholic beverages.” Under any other circumstances, according to §768.125, a person or business who provides alcoholic beverages to someone of legal drinking age “shall not thereby become liable for injury or damage” caused by or resulting from that intoxicated person.

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shutterstock_287333165The increasing popularity of ride-sharing companies such as Uber and Lyft have given rise to a burgeoning area of law and personal injury claims. Many of us rely on these companies to get us home safely, but sometimes Uber and Lyft drivers can cause automotive crashes. Other times, another driver negligently causes a collision with an Uber or Lyft vehicle. Regardless of fault, there are certain insurance and legal issues that you should be aware of if you are involved in a ride-sharing automotive crash.

Uber and Lyft both market that they have secured high-limit insurance policies for the protection of their passengers. Currently, these two companies advertise that they have $1 million in liability and uninsured motorist coverage per incident (see our website on why you need Uninsured Motorist coverage for your personal automobile policy). This means if you are in a ride-sharing vehicle and that drivers causes a crash, you and all other injured parties have up to $1 million combined in liability coverage for your damages. Likewise, if an uninsured or underinsured driver crashes into your Uber or Lyft vehicle, you (and the other injured persons) will be covered up to $1 million combined from the ride-sharing company.

While $1 million might sound like a lot coverage, what happens if an Uber or Lyft driver causes a crash where there are a multitude of injured people whose aggregate claims are above $1 million? A negligent ride-sharing driver can severely injure or kill passengers in his or her vehicle and other drivers and their passengers. If this tragic event occurs, the injured parties will certainly want to make a claim directly against the ride-sharing company to collect more than the $1 million in insurance coverage. Under the agency law, the ride-sharing companies will likely argue that their drivers are independent contractors and not employees. That would mean under agency law that Uber or Lyft might not be held responsible for the damages.

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shutterstock_119719069If you have been injured in a fall accident due to a dangerous condition, taking photographs of the accident scene is a very useful step in your pursuit of justice. Due to the chaotic nature of slip and falls, the details surrounding the accident may not be immediately apparent to an injured party. Sometimes the incident happens so quickly and it is so unexpected that the person may not be certain as to what caused them to fall. A recent decision from a Florida appeals court reinforces that even if an injured party cannot testify with certainty as to what caused them to fall, pictures of the accident scene that show a dangerous condition will get the case to a jury that can produce a prevailing outcome.

In Christakis v. Tivoli Terrace, LLC, Florida’s Fourth District Court of Appeal addressed the issue of directing a verdict in a premises liability personal injury case wherein the injured Plaintiff was not certain as to what exactly caused her fall but had strong photographic evidence. In Christakis, the Plaintiff alleged that she fell and injured herself to a dangerous condition – the Defendant’s steps. The photographic evidence in this case showed that the Defendant’s steps were damaged and in disrepair; the Plaintiff also called an expert to testify that the steps were dangerous. Despite a jury verdict in favor of the Plaintiff, the trial court entered a judgment notwithstanding the verdict in favor of the Defendant due to the fact that the Plaintiff did not testify with certainty that the damaged step caused her to fall.

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shutterstock_45805501 (2)Drunk driving is a very serious crime that causes horrific car crashes.  Often times the drunken driver reaches egregious speeds and does not keep a proper lookout, which causes very heavy impact collisions. Having represented injury victims in Florida for over a decade, I have represented many people who were injured due to drunk and intoxicated drivers.  Often times, victims of drunk drivers and their loved ones feel particularly traumatized knowing that someone acted with such reckless indifference towards their safety – that the accident “did not have to happen”.

Florida law recognizes the extremely reckless nature of crashes caused by drunk drivers and offers punitive damages to their victims. Punitive damages, as prescribed by Fla. Stat. §768.72, are a special kind of damages that are not available in most cases.  They are designed to punish those who cause injury as a result of a, “conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”  Florida law ensures that drunk drivers are included in
that category.

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shutterstock_78346864Under Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442, parties in civil lawsuits are entitled to make Proposals for Settlements to the opposition. A Proposal for Settlement involves making a formal offer in writing to the other side to settle a case for a certain dollar amount. If the offeree does not accept the settlement offer within 30 days and the case proceeds to a trial and jury verdict, he or she can be liable for the attorneys’ fees and costs of the prevailing party offeror. The topic of Proposals for Settlement has led to a plethora of appellate decisions regarding their enforceability. This is largely due to the fact that there is no standard form issued by either the Florida Supreme Court of the legislature. This means the parties have to draft their own Proposals for Settlement and the courts have to determine on a case-by-case basis whether they are enforceable as written.

One recent appellate decision on a Proposal for Settlement, Miley v. Nash, provided guidance to practitioners on drafting these documents. In Miley, Martha Nash sued the Defendants for personal injuries that stemmed from an automobile accident. Her husband, Garfield Nash, brought a claim for loss of consortium. The Nash’s alleged that Kyle Miley, while driving a vehicle owned by Glenn Miley, negligently caused the subject car crash.

Prior to trial, the Defendant, Kyle Miley, made a Proposal for Settlement to the Plaintiff, Martha Nash, in the amount of $58,590. The Proposal read that it was, “an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Mylie.” The proposal required that Marsha Nash dismiss both Defendants but was completely silent as to Garfield Nash and the loss of consortium claim.

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med mal blogIn Woodson v. Go, Florida’ Fifth District Court of Appeal (“Fifth DCA”) held that even in complex medical malpractice cases, the trial court has broad discretion to place limitations on expert witnesses. The holding represents a self-proclaimed rescission from Lake v. Clark, a 1988 Fifth DCA decision that overturned a trial court’s exclusion of a doctor’s expert witness testimony on standard of care.

The Woodson case involved a Plaintiff who claimed medical malpractice for negligent placement of a cardiac cauterization and failure to timely detect the resulting occlusion. To further his case, the plaintiff sought to call two interventional cardiologists as expert witnesses. The trial court allowed this, but limited one expert to liability only and the other only to causation. The Defendants all denied liability and maintained that they properly met the standard of care. At trial, the Defendants were victorious on liability which prompted the Plaintiff to appeal the final judgment based on the limitation of expert witnesses.

In upholding the verdict for the Defendants, the Fifth DCA held, “…we see no reason to permit litigants in medical malpractice cases to have an almost unfettered right to present cumulative expert witness testimony.” Applying an abuse of discretion standard, the appellate court noted black-letter Florida law that gives trial courts broad discretion in placing limitations on expert witnesses. See Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); Elder v. Farulla, 768 So. 2d 1155 (Fla. 2d DCA 2000). The court also referenced Fla. Stat 90.612(1)(b), Fla. Stat. 90.403 and Fla. R. Civ. P. 1.200(b)(4), all of which give the trial court the duty and power to limit cumulative testimony, including that of experts, for the purposes of an expedient trial.

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In a landmark decision, Florida’s Fourth District Court of Appeal (“Fourth DCA”) in North Broward Hospital District v. Kalitan held that caps on non-economic damages in personal injury medical malpractice cases violate the Equal Protection Clause of the Florida Constitution.

shutterstock_184358357The Plaintiff,  Susan Kalitan, suffered serious injury due to medical negligence when she went in for a carpal tunnel surgery that required anesthesia. The Defendant/anesthesiologist punctured a hole in her esophagus while performing intubation. When Ms. Kalitan awoke after surgery, she complained of excruciating pain in her chest and back but the anesthesiologist failed to detect the problem. She was released from the hospital, but the next day Ms. Kalitan’s neighbor found her at home unresponsive. She was rushed back to the hospital for life-saving surgery. Ms. Kalitan spent several weeks in a drug-induced coma before having additional surgeries and intensive therapy to begin eating again and regain mobility. She presently suffers from pain in the upper half of her body and serious mental disorders as a result of this traumatic incident and loss of independence due to physical limitations.

At trial, the jury awarded Ms. Kalitan $4 million in non-economic damages, but that figure was reduced by the trial court post-verdict to $2 million under the non-economic damages caps found in Fla. Stat. 766.118. The trial court denied the Plaintiff’s arguments that the caps were unconstitutional violations of the Equal Protection Clause, her right to access the courts and her right to trial by jury.

Ms. Kalitan appealed the reduction of her jury-awarded damages to the Fourth DCA where she was victorious. Judge Forst delivered the opinion for the appellate court, wherein he carefully followed the Florida Supreme Court’s rationale in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). In Estate of McCall, the Florida Supreme Court ruled that caps on non-economic damages in wrongful death cases violated Florida’s Equal Protection Clause as, “the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those loses”, particularly in comparison to cases where there was only one survivor.

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calculatorIf you have recently lost a loved one due to the negligence, carelessness, or recklessness of another person or business, you may be wondering about your legal rights to pursue a claim for damages against the responsible party under Florida law. Lawsuits arising from such circumstances are called wrongful death cases and are governed by the Florida Wrongful Death Act, Florida Statutes § 768.16 et seq., and other applicable laws.

When a family suffers the wrongful death of a loved one, there must first be a showing of wrongdoing by the defendant against whom the family seeks to recover. This involves a showing of negligence, a four-step test that requires proof of a duty, breach of duty, damages, and causation. Depending on the type of accident that led to the loved one’s death, there may be other elements that must be proven, but this four-prong test is at the heart of any personal injury lawsuit, including wrongful death actions.

Damages Available to Survivors under the Florida Wrongful Death Act

Once negligence is established, the question becomes the amount of damages that it will take to fully compensate the aggrieved party. In a wrongful death lawsuit, there are two types of damages that may be available. The first class of damages is those to which survivors of the deceased person may be entitled. The Act defines “survivors” as the spouse, children, parents, and, in some situations, other relatives who may have been dependent upon the deceased person for support or services. Children born outside of marriage are recognized by the Act as being the “child” of their biological mother but may not be considered the “child” of their father unless he had recognized a legal responsibility to provide support.

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