Negligence Category Archives — Page 4 of 9 — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

August 12, 2015

Florida’s Second District Court of Appeal Affirms Denial of Discovery in Medical Negligence Case

Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.

Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.

August 5, 2015

South Florida Federal District Court Denies Dismissal of Airline Negligence Suit

by Frankl Kominsky Injury Lawyers

Can an airline be subject to negligence liability for denying boarding to a customer? Although it did not fully address this question, a recent decision from the United States District Court for the Southern District of Florida, Pipino v. Delta Air Lines, Inc., assures that we will get more discussion of the issue.

The plaintiff in this case was a ticketed passenger for a flight from New York to Tampa on Delta Airlines, the defendant in this case. The plaintiff alleges that an agent for the airline denied her the privilege of boarding because the agent believed she was intoxicated. The plaintiff, however, alleges that she was suffering from a panic attack and that the airline’s refusal to let her board the plane and failure to obtain medical attention for her caused both emotional and psychological harm. Following this incident, the plaintiff brought suit against Delta to redress these injuries. The airline moved to dismiss, arguing that venue in the Southern District of Florida was improper and that the plaintiff’s claims were otherwise preempted under federal law. The district court, however, found both arguments unavailing and denied the airline’s motion to dismiss.

July 22, 2015

Florida Fourth District Rules Noneconomic Damages Caps Unconstitutional in Medical Negligence Case

by Frankl Kominsky Injury Lawyers

Last year, we posted about the Supreme Court of Florida’s decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), which held that caps on noneconomic damages in wrongful death medical negligence cases were unconstitutional under the equal protection clause of the Florida Constitution. In a recent case, North Broward Hospital District v. Kalitan, the Fourth District Court of Appeal, which encompasses both Palm Beach and Broward County, addressed a question that remained in the wake of McCall: whether the reasoning in McCall applies with equal force to noneconomic damages caps in personal injury medical negligence cases. In a decision with a far-reaching impact, the Fourth District Court of Appeal concluded that it does, and it held that noneconomic damages caps in personal injury medical negligence cases are also unconstitutional.

The events that led to the Kalitan litigation occurred in 2007. That year, the plaintiff in this action went to North Broward Hospital District for outpatient surgery to treat carpal tunnel syndrome in her wrist. The procedures required the plaintiff to be placed under general anesthesia. During intubation, which was required for administration of the anesthesia, the plaintiff’s esophagus was perforated. Prior to this incident, the plaintiff had never had bodily pain beyond symptoms associated with carpal tunnel. After awaking from the procedure, the plaintiff complained of severe pain in her chest and back. The anesthesiologist was notified. Unaware of the perforation, the anesthesiologist ordered that the plaintiff be administered a drug for chest pain. The plaintiff was later discharged, and a friend drove her home. The following day, the friend went to check on the plaintiff and found her unresponsive. The friend took the plaintiff to the emergency room, where the perforation was discovered. The plaintiff was rushed for emergency surgery. The plaintiff was in a drug-induced coma for several weeks thereafter and had to undergo several more surgeries and intensive physical therapy. She continues to suffer with persistent physical pain and mental disorders arising from the trauma that occurred.

July 15, 2015

Second District Reverses in Florida Premises Liability Case

by Frankl Kominsky Injury Lawyers

Visitors to a Renaissance festival expect to see jousts and sword fights, but they don’t typically expect to be the one dealing with an inadvertent injury at the end of the festivities. However, injuries can happen in the most unexpected places, including as described in a recent decision from the Second District Court of Appeal, the parking lot outside a Renaissance festival. In that decision, Cook v. Bay Area Renaissance Festival of Largo, Inc., the Second District needed to determine whether a trial court erred in granting summary judgment in a trip and fall case.

As noted above, the plaintiff in this case was injured while navigating the parking lot of a local Renaissance festival. Festival volunteers had directed the plaintiff to park in the overflow parking lot. There was an unpaved walkway on a patch of municipality-owned land between the parking lot and the grounds where the festival was being held. Following the festival, the plaintiff was returning to the car when she tripped on an exposed pipe that was on the patch of municipal land. There was nothing obstructing the plaintiff’s view of the pipe. Indeed, the plaintiff’s husband and other festival attendees attempted to warn the plaintiff of the pipe before she tripped. A festival volunteer removed the pipe shortly after the fall. The plaintiff brought a premises liability suit, arguing that the festival was negligent in maintaining the property. The festival moved for summary judgment on her claim against them, arguing that there was not evidence that they had control over the land where the injury occurred. There was conflicting evidence, however, regarding whether festival volunteers had directed her to use the walkway. The trial court granted the festival’s motion for summary judgment, and the plaintiff appealed.

July 8, 2015

Florida Fourth District Court of Appeal Rules on Application of Statute of Limitations in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Although most people have a basic understanding of the effect a statute of limitations has on a person’s ability to bring suit, the application of a statute of limitations can often be more complicated than expected. For instance, the Fourth District Court of Appeal recently ruled in an interesting case that involved when the statute of limitations begins to run when the injured party is incapacitated and, as a result, needs to have a guardian appointed.

The decision, Barrier v. JFK Medical Center Limited P’ship, arose from an alleged case of medical negligence that occurred in 2010. The plaintiff in this action is the mother, and legally appointed guardian, of the injured person. Her adult son had been transported to a hospital from a substance abuse facility after he attempted to commit suicide. Fewer than 10 hours after his discharge, the same substance abuse facility contacted the hospital to report that the patient was in a lethargic state and unresponsive. He was returned to the hospital, where drugs were discovered in his possession. Within two hours of his arrival, he was discharged again and into the custody of the police. While in police detention, he suffered from a cardiac arrest resulting from a drug overdose and went into a coma from which he has not emerged.

June 24, 2015

Florida Fourth District Examines Scope of Medical Malpractice Foreign Object Rule

by Frankl Kominsky Injury Lawyers

Negligence liability is fundamentally predicated on the expectation that people should exercise reasonable care in their actions when such actions have the potential to cause harm to another. Although the courts play the principal role in defining the scope of “negligence,” legislatures also actively participate in defining the scope of reasonable care. For instance, Florida law provides that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” § 766.102(3)(b), Fla. Stat. (2011). Pursuant to this rule, courts will place the burden on a defendant in cases when a plaintiff has established that a foreign object was left in him or her. Given the shift in the burden, establishing the presence of a foreign body can have a meaningful impact on medical malpractice litigation, and litigants may battle about the rule’s applicability to the issues presented in their case. The dynamics of the rules application were recently addressed in a recent decision from the Fourth District Court of Appeal, Dockswell v. Bethesda Memorial Hospital, Inc.

The plaintiff in Dockswell had been admitted to the defendant hospital for surgery. The procedure included the placement of a drainage tube. A nurse came in the following day to remove the tube, and the plaintiff was conscious at this time. The plaintiff saw the nurse remove the tube and felt no immediate discomfort. However, a 4.25-inch section of the tube was inadvertently left in the plaintiff. Four months later, after the plaintiff complained of continued pain in the region where the section of tube was left, a CT scan revealed the presence of the tube, which was removed during a subsequent surgery. The plaintiff then filed the current medical negligence suit, and the parties presented conflicting expert testimony on whether the nurse complied with the applicable standard of care. During a charge conference prior to trial, the plaintiff sought the inclusion of a jury instruction based on the foreign object rule. The trial court denied the requested instruction, finding that the plaintiff had to present direct evidence of negligence because the foreign object rule is limited to situations when the plaintiff is uncertain about the person responsible for the negligence. The jury ultimately returned a verdict favorable to the defendant, and the plaintiff appealed, arguing that the trial court erred in denying his foreign object jury instruction.

June 17, 2015

Second District of Florida Tackles Bar Fight Appeal

by Frankl Kominsky Injury Lawyers

The phrase “premises liability” is generally associated with slip and falls or shoddy construction. However, premises liability can extend to a wide variety of other types of dangerous conditions. For instance, the Second District Court of Appeal recently rendered judgment in Grover v. Karl, which addressed whether a business owner could be liable for a patron’s injuries arising from a bar fight.

Grover started with a fight at The Karl Reef, which is located near New Port Richie, Florida. The plaintiff did not participate in the fight, but she fell and was injured during the course of events. The plaintiff brought a premises liability suit against the bar’s alleged owner and property owner. The bar’s manager was near the plaintiff when the fight ensued. The facts regarding how the plaintiff fell were unclear. The plaintiff originally alleged that she fell when a different bar patron intentionally attacked her. However, during her deposition, the plaintiff testified that when the fight broke out, the manager was shoved and, as a result, fell onto the plaintiff unintentionally. Following discovery, the defendant moved for summary judgment, contending that the allegations in the complaint were contradicted by the deposition testimony, and there was no issue of material fact regarding the defendant’s notice of the danger or an opportunity to prevent it. Following the defendants’ motion for summary judgment, the plaintiff moved to amend her complaint. The proposed amended complaint sought to add the bar’s manager as a defendant and change the allegations so that they were more consistent with the deposition testimony. Specifically, the plaintiff sought to allege that the manager grabbed her arm and jostled her during the fight, resulting in the fall. The trial court granted summary judgment based on the original complaint and denied the plaintiff leave to amend. The plaintiff appealed.

June 10, 2015

Third District Addresses Intentional Tort Exception to Florida Workers’ Compensation Immunity

by Frankl Kominsky Injury Lawyers

It is fairly common knowledge that when someone is injured on the job, he is limited in the legal options he has for recovery against his employer. Indeed, Florida’s Workers’ Compensation Law generally prohibits an employee from bringing a negligence suit against his employer. However, the Workers’ Compensation Law is a general bar, not an absolute bar. In fact, Florida’s Third District Court of Appeal recently addressed the limits of one of those exceptions in its recent decision in Moradiellos v. Community Asphalt Corporation, Inc.

Moradiellos arose from the death of an asphalt surveyor who worked for Community Asphalt Corporation. Community Asphalt served as the general contractor of a project to widen the Florida Turnpike. The surveyor’s job was to determine where road markings and traffic lanes should be placed. He worked at nights, and on the night of the accident leading to his death, the survey crew was provided with a rack or portable lights, which were transported along the survey site by a pickup truck. At the time he was injured, the surveyor was working on the northbound lanes and was about 600-700 feet away from the portable lights. The surveyor was under a deactivated high mast light and was working with a flashlight and headlamp. He was hit by a dump truck that had been instructed to go to the worksite.

Instead of following directions to take the southbound lanes and approach the site from the south using the northbound lanes, the driver of the truck reversed backward down the southbound lanes, a violation of company policy. While reversing, the dump truck struck and killed the surveyor, who was facing in the other direction and speaking with a supervisor on a radio at the time of the collision. The surveyor’s widow brought this case as the representative of the surveyor’s estate and sued multiple parties, including Community Asphalt. Community Asphalt moved for summary judgment, arguing that it was entitled to immunity under Florida’s Workers’ Compensation Law. The trial court granted the motion, and the estate appealed the decision.

June 3, 2015

Fourth District Court of Appeal Addresses Harmless Error Rule in Auto Accident Decision

by Frankl Kominsky Injury Lawyers

One of the most common arguments on appeal following a trial is whether evidence was erroneously presented to the jury. Although inappropriate evidence can affect a jury’s determination, appeals courts are wary to allow a new trial in every case that involves an evidentiary ruling with which it disagrees. Accordingly, the “harmless error rule” limits overturning a jury verdict to only those situations when the evidence is shown to have had some material impact on the jury’s ruling. Courts have different standards for harmless error, and the Supreme Court of Florida recently clarified its pre-existing harmless error jurisprudence for civil cases in Special v. West Boca Medical Center. In West Boca, which arose from the appeal of a Fourth District Court of Appeal decision, the Supreme Court of Florida held that harmless error in civil cases requires that “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” 39 Fla. L. Weekly S676 (Fla. Nov. 13, 2014). The Fourth District previously applied a “more likely than not” standard for harmless error and has been forced to revise several of its decisions in light of the Supreme Court’s ruling. Among these decisions is Hurtado v. DeSouza, which involved prejudicial evidence introduced in an automobile accident trial.

The plaintiff in Hurtado filed suit after being rear-ended by another driver while stopped at a traffic light. Prior to trial, the defendant stipulated to liability, leaving only causation and damages to be determined by the jury. At trial, the plaintiff’s attorney stated in his opening statement that immediately following the accident the defendant didn’t check in on the plaintiff or apologize. The defendant’s counsel called for a sidebar with the judge, who ruled that the statement could be admitted. Afterward, the plaintiff’s counsel made another statement on the defendant’s possible effort to flee, to which the defense counsel objected. A third comment was subsequently made, and the defendant’s counsel moved for a mistrial or a curative instruction to the jury, both of which the trial court denied. In his testimony, the plaintiff noted the defendant’s failure to check on him or his family and the defendant’s desire to leave the scene of the accident. The trial judge permitted the testimony but ultimately directed a verdict in favor of the defendant on the plaintiff’s mental anguish claims. Following the directed verdict, the trial judge read a curative instruction to the jury, directing them to ignore references to the defendant’s failure to admit negligence sooner as irrelevant given the court’s determination on mental anguish damages. Ultimately, the jury returned a verdict for over one million dollars for permanent injury. The defendant appealed the jury verdict.

May 27, 2015

Fourth District Court of Appeal Rules in Florida Injured Construction Worker Suit

by Frankl Kominsky Injury Lawyers

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Workplace injuries are an everyday occurrence. However, injuries in certain workplaces create more legal complications than others. For example, construction activities at a single site are not typically performed by a single entity. Instead, the realization of a construction project often involves the overlapping work of a general contractor and numerous subcontractors. Thus, when a worker is injured, there is often difficulty ascertaining which entities are at fault and, subsequently, what forms of immunity, if any, may apply to their negligence. The dynamics of construction site workplace liability was the subject of a recent decision of Florida’s Fourth District Court of Appeal, Ciceron v. Sunbelt Rentals, Inc.

The plaintiff in Ciceron was an employee of a subcontractor that had been enlisted by the general contractor to perform demolition work as part of the renovation of a large retail store. The general contractor had also recruited electrical subcontracting and wielding subcontracting services. The defendant, Sunbelt Rentals, Inc., rented scissor lifts to the electrical subcontractor and the wielding subcontractor per a separate rental agreement. On the day of his accident, the plaintiff in this case was working at the construction site. One of the scissor lifts became inoperable. A Sunbelt employee came to the site to remove the lift but encountered difficulty loading the lift onto a truck. The Sunbelt employee asked the plaintiff and several of his coworkers for assistance with the task. The Sunbelt employee instructed them on how to position the lift, but during the course of loading the plaintiff suffered severe bodily injuries that ultimately resulted in the amputation of his leg. The plaintiff brought suit against Sunbelt, asserting various theories of negligence and loss of consortium. Following discovery, Sunbelt moved for summary judgment, arguing that the plaintiff had already received workers’ compensation benefits for his injuries and that the claims were barred by horizontal immunity under Florida’s Workers’ Compensation Laws. The trial court granted the motion for summary judgment, and the plaintiff appealed.