Articles Posted in Wrongful Death

In a long-awaited decision, Chirillo v. Granicz, the Supreme Court of Florida provided much-needed clarity on the thorny question of the liability that may extend to a psychotherapist for his or her patient’s suicide. The decision resolves conflicting rulings from two of Florida’s Courts of Appeal and provides coherent guidance to litigants wondering whether the conduct of a treating psychotherapist is actionable.

Granicz was brought by the widower of a patient who had received mental health care treatment from a primary care physician for about three years prior to her suicide. The physician began providing treatment to the patient in 2005, and in September of that year, he switched the patient’s antidepressant medication from Prozac to Effexor. In October 2008, the patient contacted the physician’s office and told a medical assistant she had ceased taking the Effexor because she believed it was causing various deleterious side effects, including difficulty sleeping and digestive problems. After reading notes on this conversation taken by the medical assistant, the physician called the patient, told her that he was changing her prescription to Lexapro, and referred her to a gastroenterologist. The physician told the plaintiff that she could obtain samples of Lexapro from the office, but he did not schedule an appointment to meet directly with the plaintiff. Some days thereafter, the patient went to the office to obtain the samples.

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In a recent decision, Jones v. Alayon, Florida’s Fourth District Court of Appeal addressed several questions arising from trial in an auto accident negligence case. At trial, the jury found that the decedent was, in part, responsible for his death because the evidence established he had not been wearing a seatbelt at the time of the crash. Among various arguments the decedent’s estate raised on appeal was whether the trial court erred in not directing a verdict in favor of the estate on the defendant’s seatbelt defense because the undisputed evidence showed that the seatbelt was actually inoperable.

Alayon was brought by the daughter of the decedent as the personal representative of the decedent’s estate. The defendant in this case was the driver of the vehicle that rear-ended the decedent’s vehicle, which caused it to strike a guardrail and turn over. The decedent was ejected from the vehicle. The decedent died as a result of either ejection from the vehicle or being struck by other oncoming cars. The defendant was a off-duty police officer, who fled after striking the decedent’s vehicle and falsely reported that it had been stolen. At the time of the civil trial, the decedent was incarcerated on charges related to the hit-and-run. The defendant conceded liability but contended that his negligence didn’t result in the decedent’s death. Instead, the defendant argued that the decedent was comparatively negligent because he failed to wear a seatbelt.

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When negligence regarding the administration of medication is mentioned, most people would typically think of doctors or nurses. However, other medical professionals may be liable for negligence related to the prescribing of medicine. In fact, Florida’s Fifth District of Appeal recently rendered judgment in an interesting case involving a pharmacist’s liability for the death of one of his customers.

The decision, Oleckna v. Daytona Discount Pharmacy, relates to the treatment of a now deceased patient for stress syndrome. The patient began his treatment in 2009 and received a prescription for Xanax and Hydrocodone or Oxycodone from a local physician. Over the next two years, the physician repeatedly prescribed these drugs before the date that the patient should have depleted his previous prescription. The defendant in this case, a local pharmacy, filled at least thirty of these prescriptions, even though they were prescribed closely in time. In March of 2011, the patient died due to drug intoxication of Alprazolam and Hydrocodone. The estate of the deceased brought suit against the pharmacy, alleging the pharmacy was liable for various forms of negligence associated with filling the deceased’s prescriptions. The pharmacy moved to dismiss, arguing that it could not be held liable for negligence under the circumstances. The trial court granted the motion, and the estate appealed.

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The Supreme Court of Florida recently issued an opinion reversing a Fourth District Court of Appeal decision we cited in a previous post. The decision, Sanders v. ERP Operating Limited Partnership, examines when a defendant is entitled to a directed verdict in negligent security action.

The events leading to the Sanders case started in late 2004 when two young adults moved into an apartment complex that was marketed as a gated community. A year after they moved into the complex, the two were shot to death inside their apartment by unknown assailants. There were no signs of forced entry, but possessions including an engagement ring, cash, and credit cards had been taken. Evidence adduced during discovery showed that in the three years prior to the murders there had been two prior “violent” incidents at the gated community when the gate had been broken and criminals followed residents onto the property. During the year of these murders, the gate had been inoperable for a total of four months. One incident resulted in an armed robbery, the other in an assault. Though a governing manual provides that notice be given to residents when such acts occur, no notice was provided after these incidents.

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We generally associate vehicular accidents with the negligence of one of the drivers, but in certain circumstances fault may be attributable to the acts or omissions of a third party. Third-party liability for a death resulting from a Pembroke Pines auto accident is the central topic in a recent decision from Florida’s Fourth District Court of Appeal, McIntosh v. Progressive Design and Engineering, Inc..

In McIntosh, the son of a deceased driver brought suit against the company that designed the traffic signal at the intersection where his father was injured. The intersection where the accident occurred is situated at the exit from a local trailer park. The traffic signal at this intersection allowed a driver exiting the trailer park to rely on a traffic signal further out in the intersection that was intended for other traffic while neglecting the closer traffic signal intended to control traffic exiting the trailer park. While the deceased person was exiting from the trailer park, he collided with a truck traveling southbound on the cross street. The signal design and interconnect plans were developed by Progressive Design and Engineering, Inc. with the input and approval of the Florida Department of Transportation. The plans were eventually approved and sent out for contractor bidding. The construction team generally constructed the intersection per Progressive’s plans. The accident occurred 15 days into the burn-in period, a warranty period when the contractor maintained the traffic signals in case a problem arose. During this period, only the Florida Department of Transportation could order necessary changes.

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Generally, jury verdicts are rarely disturbed. Unless there is a grievous error that likely had a material impact on the judgment reached, judges will neither issue a ruling notwithstanding the verdict nor order a new trial. This aversion to modifying judgment was illustrated in a recent decision from Florida’s Fifth District Court of Appeal, Weissman v. Radiology Associates of Ocala, P.A., which involved the propriety of a trial court’s order for a new trial in a wrongful death case that had resulted in a jury verdict in favor of the plaintiff.

Weissman concerned an alleged act of medical negligence leading to the wrongful death of a patient. Following the patient’s death, the representative for the deceased plaintiff brought suit against Radiology Associates of Ocala and personnel. After a trial, the jury returned a verdict in favor of the plaintiff. Thereafter, the defendants performed a background investigation on the jurors and filed a motion for the court to conduct juror interviews, alleging that there existed material non-disclosures among several of the jurors. The court performed these interviews and then granted the defendants’ separate motion for a new trial, having found that three jurors had indeed failed to make material disclosures during voir dire questioning. The plaintiff then brought an appeal.

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Many negligent security cases involve a property owner’s liability for failing to adequately secure property from foreseeable third-party criminal activity that causes harm to a resident or other visitor. However, the Sun Sentinel recently reported on the 1.5 million-dollar settlement of a case that presented a more novel theory of negligence in the area of apartment security, which involved the failure of a property management company to adequately screen residents, one of whom eventually murdered another.

This case arose from the tragic shooting of a former Marine in the parking lot of an apartment complex in Plantation, Florida on July 17, 2012. The former Marine was a resident of the apartment complex, and the murderer, as noted above, also resided at the complex. Witnesses at the time of the murder said they were unaware of any preexisting grievance between the two residents. However, the murderer had been a resident at a different apartment complex in Plantation, managed by the same property management company that managed the apartment complex where the murder occurred. The murderer had been evicted from the first property for causing disturbances and making death threats against other tenants. Information regarding the murderer’s eviction was part of a background investigation performed by the management company, but this background check was never reviewed before the decision to permit the murderer to rent an apartment was made. Following the murder, the Marine’s widow brought a wrongful death suit against the property management company, arguing that the management company failed to exercise reasonable care in its evaluation of prospective tenants and that this breach of reasonable care led to the death of her husband.

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Given that the Florida law imposes specific evidentiary standards, pre-suit filing requirements, and other obligations on medical negligence cases, it follows that properly distinguishing medical negligence from standard negligence is important for successfully asserting and proving claims that ambiguously skirt the line between standard negligence and medical negligence. This issue is at the center of a recent decision from the Fourth District Court of Appeal, Buck v. Columbia Hospital Corporation Of South Broward. In Buck, the court needed to determine whether it was proper for a trial court to dismiss a wrongful death case for failing to comply with the medical negligence pre-suit requirements of Chapter 766, Florida Statutes.

The act of negligence resulting in the death at issue in this case occurred in May 2012. At that time, the decedent was brought to Westside Regional Medical Center in Broward County and admitted for complications related to chronic obstructive pulmonary disease. Two days following her admission, the decedent was scheduled to have x-rays performed and was transported to the radiology floor. Prior to the decedent’s x-rays being taken, transport techs at the medical facility lifted the decedent from the transport gurney in order to place her on the x-ray table. In the course of this movement, the decedent was dropped on the x-ray table, which caused the decedent to sustain a fracture of her lumbar spine. Various factors, including the decedent’s age and medical condition, limited the treatment options for the broken back. The decedent’s condition deteriorated thereafter, and the plaintiff alleges that the broken back ultimately caused the death of the decedent.

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A common legal issue that arises in the context of imprisonment or other forms of detention is liability for failing to provide or negligently providing medical care to those detained. Irrespective of the location of medical malpractice, however, common evidentiary standards required for medical malpractice actions apply. These issues are at the core of the Southern District of Florida’s recent decision in Segundo v. United States, which involves claims alleging negligence on the part of the medical staff leading to the cardiac death of a detainee at Krome Detention Center in South Florida.

The detainee had been transferred to Krome Detention Center in 2010, and his Transfer Summary noted his severe, preexisting diabetes. At the time of booking, the detainee underwent a medical evaluation that corroborated this prior medical history of diabetes. Following admission, the detainee continued to take oral diabetic medications, and his blood glucose level was checked twice a day. The admission medical evaluation also included a screening EKG, the results of which came back normal and did not indicate any acute or chronic myocardial ischemic changes or other findings associated with coronary artery disease. From the time of his arrival until the day before his death, the detainee did not complain of chest pain, shortness of breath, weakness, fatigue, or other symptoms associated with cardiac dysfunction.

However, the day before his death, Krome medical staff evaluated the detainee for a sore throat, runny nose, and cough. The day after, the detainee stated he felt ill but was nonetheless communicative and able to move. While staff was taking the detainee to the Urgent Care Center at the Krome compound, he suffered an arrhythmia and died. A autopsy report found the detainee’s cause of death to be severe atheroscleros in the left anterior descending coronary artery. Given the normal EKG just days before the death, no evidence in the record suggested that medical staff at Krome should have predicted the subsequent cardiac death. Following the detainee’s death, the personal representative for his estate brought a wrongful death lawsuit against the United States under the Federal Torts Claims Act, alleging negligence on the part of Krome’s officers, agents, and employees.

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With a seemingly endless coastline, Florida is a haven for water-based recreational activities. As the Third District Court of Appeal noted at the conclusion of its recent decision in Diodato v. Islamorada Asset Management, Inc., many Floridians and tourists in the state commonly enjoy recreational activities such as jet-skiing, para-sailing, and scuba diving. Although the vast majority of those who engage in these activities do so without incurring any injury, they remain hazardous activities, and participation does come with some degree of  risk. In light of the attendant dangers posed by these and other forms of recreation, virtually every business in this field requires customers to sign contracts containing provisions commonly known as exculpatory clauses, which state that the customer assumes the risk associated with the activity. This practice is at the center of the controversy in Diodato, which involved the unfortunate drowning of an Arizonan woman during a deep-water wreck scuba excursion off the Florida Keys.

The aforementioned drowning occurred on April 15, 2010, although this was not the decedent’s first time diving. In fact, she had obtained PADI certification in Arizona and had previously gone on several other dives with the principal defendant in this lawsuit, Key Dives, an Islamorada-based recreational scuba diving company. The fatal dive, however, was an advanced deep-water wreck dive, which was unlike the open water reef dives she had previously done with Key Dives instructors. It is common practice at Key Dives for customers to sign a liability release prior to each dive. However, on this day of this dive, the decedent arrived late to the dock and was not required to sign a waiver. After submerging about 10 feet, the decedent signaled to one of the instructors that she would like to surface. The instructor followed her up but did not help her back on board the boat. While trying to board the boat, the decedent lost hold of the boat’s granny line and drifted away. In response, the captain signaled an alarm, and after a brief search, the decedent was found floating, but she had drowned.

Following the incident, the estate of the decedent brought a wrongful death action against Key Dives and several of its employees and agents. Although the decedent had not signed a liability waiver on the day of that particular dive, the defendants argued that other liability waivers signed by the decedent in connection with other Key Dives diving events covered the incident at hand and shielded the company from liability. Specifically, in August 2009, the decedent signed a liability waiver before a series of six open-water reef dives and initialed a provision on the contract that stated that the release was valid for one year from the date it was signed. In addition, the day before the deep-water dive, the defendant went on an open-water reef dive that was being used as preparation for the upcoming advanced dive and again signed a liability release. This release was identical to the one signed in August of the year before, but the decedent on this occasion did not initial the one-year provision. Although Key Dives intended for the decedent to sign a more thorough release form on the day of the fatal dive that covered particularities of the deep-water excursion, the decedent did not sign this release, since she, as mentioned above, arrived late, and the crew did not wish to delay other diving customers. Following discovery, the trial court granted summary judgment in favor of the defendants and held that the August 2009 and April 2010 releases covered the fatal diving event at issue, and, accordingly, the decedent had released Key Dives and its employees from liability.

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