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shutterstock_604492649-1-300x200With the dawn of the social media age came a burgeoning new field of law. Social media discovery has spawned a rash of appellate decisions covering everything from the discoverability of Facebook posts to the legal significance of emojis. But what happens when a Facebook post could be evidence of a crime?  Does that post get Fifth Amendment protection against self-incrimination?

The above question was posed to Florida’s Fourth District of Appeal in Wright v. Morsaw, a wrongful death civil case. In Wright, it was alleged that the Defendant was intoxicated when he left a Delray Beach bar. The Defendant was accused of a hit-and-run crash that killed a pedestrian. After the fatal crash, the Defendant allegedly fled to a friend’s home where he posted about the incident on social media.

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shutterstock_668481628-300x200In a brand-new opinion, Ruiz v. Tenet Hialeah Healthsystem, Inc., et al., the Supreme Court of Florida reinforced that the concept of causation in medical malpractice is broad and should be left to a jury. The fact pattern in Ruiz involved a patient who was misdiagnosed with a tumor instead of multiple myeloma. Without ordering a biopsy to confirm the diagnosis, the treating neurosurgeon recommended a surgery to remove the “tumor”. During the surgery, the patient, Ms. Espinosa, went into cardiac arrest due to undiagnosed cardiac risk factors and passed away.

Ms. Espinosa’s estate brought a wrongful death medical malpractice case against a host of doctors and the hospital. One of the defendants was an anesthesiologist, Dr. Lorenzo, who had failed to recognize abnormal test results during the pre-operative clearance. The estate contended that had the defendant anesthesiologist pronounced these abnormalities, the surgery would have been cancelled and Ms. Espinosa would not have died.

The defendant doctor sought to have the case dismissed based on a failure to prove causation, e.g., that he was the legal cause of the patient’s death. Causation is a legal concept that bridges the gap between a defendant’s wrongdoing (negligence) and the damages sought by the plaintiff. In every personal injury and medical malpractice case, the plaintiff must prove that the defendant’s negligence was the legal and proximate cause of the injuries and damages that she is claiming.

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shutterstock_227581717-300x200In the case of  Walerowicz v. Armand-Hosang, the Fourth District Court of Appeal clarified its perspective on two points: 1) what is considered sufficient evidence to prove past medical expenses and 2) how to deal with admission of expert testimony that does not conform to the court’s trial order. In this case, the plaintiff, Mandy Armand-Hosang, sued for permanent bodily injuries she sustained in a car accident. As in most every auto accident case in Florida, Ms. Armand-Hosang, as the plaintiff, had to prove the causation and permanency of the her injuries and reasonableness and necessity of her medical bills. The Fourth District Court of Appeal sided with the plaintiff on both issues, holding that the trial court did not abuse its discretion by allowing the plaintiff’s surgeon to testify regarding the causation and permanency of the plaintiff’s injuries, and the plaintiff had met the evidentiary burden to prove the reasonableness and necessity of her past medical expenses.

In many states, all that is required to establish reasonableness and necessity of past medical bills is merely entering the medical bills into evidence. Florida, on the other hand, requires a little more effort—but to what extent? In Walerowicz, to prove reasonableness and necessity, the plaintiff’s attorney relied on the plaintiff’s testimony about her treatment for her accident-related injuries, the treating surgeon’s testimony, and also offered the medical bills into evidence. The defendant argued that the testimony was insufficient to establish reasonableness and necessity because the plaintiff did not associate each specific bill to the injuries sustained in the accident.

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There were nearly 400,000 accidents in the state of Florida in 2016 and 166,000 of them involved injuries. Of those injuries, nearly 22,000 were incapacitating. While there is often clear fault in these tragic circumstances, victims are rarely compensated sufficiently for their suffering.

From working with our clients in Boynton Beach and surrounding areas, we know that these accidents are traumatic and cause financial hardship. Current and future medical bills and loss of wage issues can devastate a family.  We can help.

Six common types of negligent accidents include:

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At some point in life, every person surely has received the age-old advice to read a contract before signing it. However, what if you are awoken from a comatose state only to realize that a contingency fee contract with a law firm was executed on your behalf?

On April 4th, 2018, the Fourth District Court of Appeal decided the case of William O’Malley v. The Freeman Law Firm, which serves as a cautionary tale to lawyers who work on contingency fee agreements. In this case, the appellant, William O’Malley, was involved in a horrendous car wreck that left him in a coma for months. During this period, his mother sought representation on his behalf and signed a personal injury contingency fee contract as the personal representative of the Estate of William O’ Malley. Problem: the mother was never actually appointed as personal representative! Moreover, Mr. O’Malley had not executed a power of attorney in favor of his mother, nor had he been declared legally incompetent by a court, which could have led to an appointment of a legal guardian.

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If you have lost a loved one due the negligence of another person, the last thing you need is to be bombarded with questions about the status of your relationship with the deceased. Last month, the Fifth District Court of Appeal in Florida clarified this issue in a written opinion in Domino’s Pizza v. Wiederhold, discussing when a plaintiff qualifies as a “surviving spouse” for a wrongful death lawsuit.

The court explored the tragic case of an engaged couple that married after a disastrously life-altering car accident. The plaintiff was a passenger in a vehicle with her then-fiancée, who was forced to swerve into a median when a vehicle owned by a Domino’s franchisee suddenly pulled out in front of them. The car overturned a few times before coming to final rest in a ditch. The accident immediately left the man a quadriplegic, while the woman was unharmed. A month after the accident the man sued Domino’s, the franchisee owner, and the driver of the franchisee’s vehicle. The couple subsequently moved forward with their commitment and married before the man died a year later due to accident-related injuries. After her husband passed away, the woman was substituted as the plaintiff and filed an amended complaint to include a claim for wrongful death damages.

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In my experience as a trial lawyer, it is often times difficult for the parties of a lawsuit to understand the restrictive nature of the rules of evidence. There are narrow guidelines by which attorneys must conduct themselves when arguing to a jury. If a lawyer steps out-of-bounds during trial, his client’s favorable verdict might be overturned by an appellate court.

Such was the case in TT of Indian River v. Fortson, a recent appellate decision issued by Florida’s Fifth District Court of Appeal. In TT of Indian River, the plaintiff in a personal injury automobile accident case received a favorable jury verdict. However, due to some remarks made by her trial attorney, that verdict was overturned.

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Summer break has ended here in Florida and schools are back in session. Consequently, there are an abundance of inexperienced teenaged drivers on the road. Many of these teenaged drivers are under 18 and driving their parents’ car. In 2015, there were 42,874 teenaged driver car crashes in Florida according to the Department of Highway Safety. At The Grife Law Firm, we have a wealth of experience representing people who have been seriously injured due to young, reckless drivers. Frequently, we are asked: Who can I hold responsible for the damages caused by a reckless teenaged driver?

Pursuant to Florida’s dangerous instrumentality doctrine, the owner of a vehicle is liable for damages caused by the negligence of permissive users. This doctrine was first recognized in the landmark 1920 case of Southern Cotton Oil Co. v. Anderson, wherein the Supreme Court of Florida held that, “[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway, is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality…” The rationale is that a motor vehicle is a potentially deadly piece of machinery that can cause serious harm, so the owner must bear some responsibility for damages caused by it. The hope is that the dangerous instrumentality doctrine will encourage vehicle owners to entrust only safe drivers to operate their cars. For purposes of our discussion, if a teenager drives in a reckless fashion and causes a car wreck, the owner of the at-fault vehicle will be held legally responsible for personal injury damages such as medical expenses, lost wages and pain and suffering.

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Florida has a very complex 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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