South Florida Injury Attorneys Blog

August 29, 2018

Court Discusses Florida’s Medical Malpractice Notice Requirement in Recent Case, Determining Plaintiff’s Case Need Not Comply

In a recent opinion, a state appellate court discussed the notice requirements of a Florida medical malpractice lawsuit. That presented a situation in which a plaintiff filed a lawsuit against a healthcare provider raising claims that the plaintiff believed was not based on a theory of medical malpractice. Thus, the plaintiff did not take the extra steps to comply with the state’s notice requirements for medical malpractice lawsuits.

The court had to decide if the case should be dismissed based on the plaintiff’s failure to comply with the additional notice requirements. Ultimately, the court concluded that the plaintiff did not need to comply with the additional requirements because the plaintiff’s lawsuit was brought under a traditional theory of negligence and not considered a medical malpractice case.

Florida Statutes section 766.106 – Florida’s Medical Malpractice Notice Provision

Florida lawmakers have made it so all Florida medical malpractice plaintiffs must comply with additional requirements in order for their case to be properly heard. These additional requirements can be burdensome, however, if they are not followed a plaintiff’s case may be dismissed without the merits of the case ever being heard.

July 18, 2018

Florida Court Dismisses Claim Due to Plaintiff’s Concealment of Previous Injury

by Frankl Kominsky Injury Lawyers

Some parties try to get away with lying or concealing information relevant to a legal claim. However, the consequences of failing to provide honest and complete testimony can be dire. In a recent case before a Florida appeals court, the court dismissed a personal injury claim after the plaintiff concealed a history of low back injury.

In that case, the plaintiff was riding in a car owned by his girlfriend when they were hit by a truck that fled the scene. The plaintiff alleged that the girlfriend was negligent and that he suffered permanent injuries to his neck and lower back as a result.

The parties engaged in discovery and the plaintiff admitted that he injured his lower back about 30 years prior, but testified that it had healed and he had not had any problems since that time. However, a review of the plaintiff’s medical records later showed that he hurt his lower back several months before the incident when he slipped on a stepladder. His records also revealed that he reported having a “chronic” history of similar episodes as well as a herniated disc. Additionally, when he went to the emergency room after the most recent accident, he reported that his back pain started “a long time ago.”

June 13, 2018

The Importance of Establishing a Defendant’s Knowledge of the Hazard in Florida Premises Liability Lawsuits

by Frankl Kominsky Injury Lawyers

All Florida personal injury claims have certain elements that must be met before a jury can award a plaintiff compensation for the injuries they have sustained. In general, all lawsuits brought under the umbrella of “negligence” must establish that the defendant violated a duty of care that was owed to the plaintiff, and that the defendant’s violation of that duty resulted in the plaintiff’s injuries.

Specific to Florida premises liability lawsuits, a plaintiff must establish the following:

The defendant knew or should have known that the hazard existed;
The defendant failed to remedy the hazard or warn the plaintiff about the hazard if it was unable to be fixed; and
The plaintiff was injured as a result.

While this sounds simple in theory, in reality these cases are often much more complex. Often, this comes down to a plaintiff’s ability to show the court that the defendant landowner had knowledge of the hazard that caused their injuries. A recent decision issued by the Third District Court of Appeal illustrates how lower courts sometimes get the analysis wrong.

May 23, 2018

Florida Court Discusses When a Case Is Considered One of Medical Malpractice

by Frankl Kominsky Injury Lawyers

Medical malpractice claims in Florida are treated differently than general negligence claims. For one, plaintiffs in Florida medical malpractice cases have to follow certain procedural requirements before filing a lawsuit. Another difference is that the statute of limitations for medical malpractice claims is two years, and to two years for general negligence claims. Whether a claim falls under the definition of “medical malpractice” is not always clear, as a recent Florida Supreme Court case illustrates.

Medical Malpractice in Florida

In Florida, medical malpractice is defined under Florida Statute § 766.106(1)(a) as a “claim, arising out of the rendering of, or the failure to render, medical care or services.” Florida courts have decided that to be considered a medical malpractice claim, the negligent act had to “ar[ise] out of medical . . . diagnosis, treatment, or care,” and the diagnosis, treatment, or care had to be “rendered by a provider of health care.”

Florida Supreme Court Defines Medical Malpractice in Lawsuit Against National Deaf Academy

The Florida Supreme Court recently decided a case that considered the definition of a medical malpractice claim. In that case, a woman brought a claim against the National Deaf Academy after she was injured as a resident there. One day, while she was residing at the treatment facility, she threw rocks at the staff and the building and pulled on the building’s cables and wires in an attempt to remove them. A nurse attempted to restrain the resident, and both of them fell, causing the resident to injure her leg.

April 11, 2018

Florida Court Rejects Nursing Home’s Request to Have Arbitrator Determine Validity of Arbitration Agreement

by Frankl Kominsky Injury Lawyers

Earlier this month, an appellate court issued a written opinion in a Florida wrongful death case brought by a woman whose husband died while in the care of the defendant nursing home. The case required that the court determine whether the plaintiff’s claim involving the validity of the arbitration agreement should be determined by the named arbitrator, or whether it was properly before the court. Citing the lack of a delegation clause, the court determined that the arbitrator lacked jurisdiction to make the determination.

Arbitration in Florida Nursing Home Cases

It is common for a Florida nursing home resident to be provided with an arbitration agreement prior to admission and asked to sign. While a nursing home cannot make admission contingent upon the signing of the agreement, that fact is rarely made known to residents and their families.

The benefits of arbitration flow mostly to the nursing home. For example, the decreased cost of litigation is more important for a nursing home, which may face frequent claims. Similarly, the confidentiality of arbitration benefits the nursing home in the event that the resident’s claim is substantiated. Finally, nursing homes are able to choose the forum where the arbitration will take place, creating the potential for favoritism and bias.

March 7, 2018

Can a Judge Review a Florida Jury’s Decision?

by Frankl Kominsky Injury Lawyers

In most Florida personal injury cases, once a jury comes to a decision and enters a verdict, the case is over. Generally speaking, the jury’s decision regarding whether the defendant should be held liable to the plaintiff is fairly insulated from review and can only be overturned in the rarest of circumstances.

There are some situations, however, in which a jury’s decision regarding an award amount is subject to a judge’s review. Thus, if a jury finds that the defendant is liable to the plaintiff, enters judgment in the plaintiff’s favor, and then enters an award too large or too small, the judge can review the jury’s award. Under Florida Statute section 768.74, if the judge determines that the award was not appropriate, the judge can then order a remittur (reduction) or an additur (increase) in the award amount.

Section 768.74 lays out several considerations that a judge should take into account when asked to review a jury’s award. These include:

February 7, 2018

Florida Court Requires Insurance Company to Provide Coverage to Victim of Golf Cart Accident

by Frankl Kominsky Injury Lawyers

Earlier this month, an appellate court issued an opinion in a Florida personal injury case involving a pedestrian who was struck by a golf cart and sustained serious injuries. The case illustrates the difficulties that are common when dealing with an insurance company in the wake of a serious accident.

Unfortunately, the operator of the golf cart responsible for causing the accident did not have sufficient insurance coverage to fully compensate the victim for her injuries. Thus, the victim was forced to file a claim with her own insurance company, under the underinsured motorist provision. The case required the court to determine if the accident victim’s policy covered the accident.

The Plaintiff’s Insurance Policy

The plaintiff’s insurance policy provided for both liability protection as well as underinsured motorist protection. The language describing the policy’s liability protection included coverage for all accidents involving cars and trailers. However, the policy contained an exclusion for vehicles that were not generally used for public roads. That being said, the exclusion specifically excepted accidents involving non-owned golf carts from the exclusion.

January 17, 2018

Florida Appeals Court Reinstates Jury’s Verdict Despite Defendant’s Lack of Testimony

by Frankl Kominsky Injury Lawyers

Cases that go to trial are generally left in the hands of the jury. However, in some cases, judges can take the decision out of juries’ hands and make a decision on their own. In one recent case, a Florida appellate court considered the limits of a trial judge’s ability to take the decision away from the jury, even when only one side presented testimony on an issue.

In this Florida car accident case, a woman and her husband brought a claim against the insurance company for uninsured/under-insured motorist coverage after the woman was injured in a car accident. The case proceeded to trial, but before the trial began, the court prohibited three of the insurance company’s experts from testifying, leaving only the plaintiff and her surgeon to testify on the issues of causation and whether she sustained a permanent injury.

The jury found the accident caused the plaintiff’s injuries but did not find that she had suffered a permanent injury. However, the plaintiffs moved for a directed verdict, and despite the jury’s verdict, the court found in the plaintiffs’ favor on the issues of causation and permanency. The insurance company appealed, arguing that even though their experts were barred from testifying, the court should have allowed the jury’s verdict to stand.

December 13, 2017

Florida Court Discusses the Difference Between a Traditional Negligence Case and a Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Last month, a state appellate court issued a written opinion in a Florida premises liability lawsuit that presented the court with the opportunity to discuss when a negligence case becomes subject to the additional procedural requirements of a medical malpractice case under Florida law. Ultimately, the court determined that the facts as presented in the case fell within the traditional theory of negligence, and it was not subject to the additional requirements of Florida medical malpractice cases.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. The patient had an appointment with the defendant to remove a catheter. When the defendant doctor entered the examination room, he instructed the plaintiff to climb atop the examination table. The doctor then pulled out a small stepping stool to assist the plaintiff. Once the plaintiff was atop the table, the doctor scooted the stool back under the table.

The doctor removed the catheter without incident. At the completion of the procedure, the defendant instructed the plaintiff to get dressed and go make an appointment with the front desk for a follow-up visit. However, the doctor did not pull the stool back out from underneath the table. The doctor then left the room.

November 8, 2017

Florida Court Refuses to Consider Insurance Company’s Argument Raised for the First Time in a Post-Trial Motion

by Frankl Kominsky Injury Lawyers

As a general rule, litigants in Florida car accident cases must raise any issues they have with the trial court’s decisions at the moment a decision is made. Similarly, when responding to a claim or allegation, a party should be sure to make all relevant arguments at that time. Otherwise, a court may consider the argument waived.

The purpose of the waiver rule is to encourage efficient resolution of cases. If, for example, a party were able to raise any issue at any time, courts would find themselves dealing with a never-ending series of motions and requests as the parties came up with new versions of old arguments. Instead, Florida court rules require that parties bring everything they have upfront so that the judge can make one informed decision that will not need to be revisited, absent a legal error. A recent Florida personal injury case illustrates this concept.

The Facts

The plaintiff was injured when another motorist struck her vehicle. The other motorist did not have sufficient insurance coverage to fully compensate the plaintiff for the injuries she sustained. The plaintiff, however, was covered under two other insurance policies: an Allstate policy in her mother’s name and a Geico policy in her father’s name. The Allstate policy provided $5,000 more in coverage than the Geico policy.