South Florida Injury Attorneys Blog

January 7, 2015

Fifth District Court of Appeals Reverses Grant for a New Trial in Medical Malpractice Case

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.

December 31, 2014

Settlement Reached in Broward County Negligent Security Case

by Frankl Kominsky Injury Lawyers

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.

December 24, 2014

Second District Reverses in Motor Vehicle Negligence Case

by Frankl Kominsky Injury Lawyers

Although a defendant’s ability to pay or otherwise satisfy a plaintiff’s judgment is always of paramount concern in litigation, this issue can be further complicated when the defendant files for bankruptcy during the pendency of a case. Indeed, although a defendant’s motor vehicle insurer is often obligated to pay all or some of a plaintiff’s recovery, the specter of a defendant’s insolvency and the legal rules that apply when bankruptcy proceedings are initiated can nonetheless still create confusion for plaintiffs. This sort of confusion is highlighted in the Second District Court of Appeal’s recent decision in Whritenour v. Thompson (PDF-embedded link).

The Whritenour case was commenced following a motor vehicle accident in July 2011. The plaintiff sustained bodily injury as a result of the accident and promptly brought a negligence action against the defendant in January 2012. The defendant had bodily injury liability insurance coverage that was capped at $300,000. The insurer obtained defense counsel, who advised the defendant to file for bankruptcy. Heeding the advice, the defendant filed for bankruptcy in September 2012 and listed the plaintiff’s personal injury claim in the bankruptcy petition. The bankruptcy court then issued an automatic stay of the negligence proceedings. In October, the plaintiff filed an emergency motion for relief from the stay of proceedings in the bankruptcy court. The bankruptcy court granted the motion and amended to the stay to permit the plaintiff to “to commence, prosecute, complete […] through final judgment […] claims against [the defendant], for the purpose of pursuing [the defendant’s] insurance carrier and not for the purpose of pursuing personal liability against [the defendant].” Thereafter, the personal injury litigation continued until the defendant filed a motion for summary judgment, which argued that the she had no personal liability, that the plaintiff’s maximum recovery was limited to the $300,000 policy limit, and that, despite an absence of sworn testimony to that effect, the bankruptcy trustee had no intention of pursuing a bad-faith action against the carrier that could increase the scope of the insurer’s possible obligation. The trial court granted the motion, holding that the plaintiff was not entitled to proceed to trial and, by effect, a determination of damages because the plaintiff failed to file an action for bad faith prior to the defendant being discharged in bankruptcy. The plaintiff then brought the current appeal.

December 17, 2014

South Florida Federal Magistrate Judge Precludes Attendance of Plaintiff’s Counsel and Videographer at Medical Examination

by Frankl Kominsky Injury Lawyers

At issue in almost all personal injury litigation is the extent of a plaintiff’s physical injuries. Indeed, long before a possible trial, both plaintiffs and defendants enlist physicians to perform medical examinations and make professional determinations regarding the nature and extent of the alleged injuries. Given the obvious privacy interests associated with physical examinations and the defendant’s need to acquire evidence to rebut a plaintiff’s claims, problems related to medical examinations are not uncommon. Some of these possible issues are on full display in Kropf v. Celebrity Cruise, Inc., a recent decision from the U.S. District Court for the Southern District of Florida.

Kropf arose from a slip-and-fall accident on a cruise ship owned and operated by Celebrity Cruises, Inc., the defendant in this case. The plaintiff was injured as a result of the fall and underwent revision surgery of a prior hip replacement. The surgery led to further permanent, debilitating, and significant injuries. In her complaint, the plaintiff alleged the defendant’s “negligence in allowing [the tile] to remain in a wet and slippery condition” caused the fall and, consequently, the resulting injuries. Following the initiation of the action, counsel for Celebrity Cruises emailed the plaintiff’s counsel a Notice of Compulsory Medical Evaluation, which stated the plaintiff needed to undergo a medical examination by the defendant’s medical expert and that the examination was being conducted for the purposes of determining the nature and extent of the plaintiff’s alleged injuries and any disabilities resulting from them. This notice was sent on October 14, 2014, but the plaintiff’s counsel did not respond until November 14, 2014, only about two weeks before the scheduled examination of December 1, 2014. The response stated that the plaintiff’s counsel intended to send a videographer to the medical examination. In response, the defendant brought a motion, asking the court to preclude both the plaintiff’s counsel and the plaintiff’s videographer from attending the medical examination.

December 10, 2014

South Florida Federal District Court Sides with Plaintiff and Remands Negligence Case Back to State Court

by Frankl Kominsky Injury Lawyers

An issue of importance that any potential plaintiff must consider at the initiation of litigation is whether to bring his or her case in state or federal court. Given the differences in both procedural and, in more limited circumstances, substantive law to be applied, this choice can have a marked impact on the outcome of a case. Although not all litigants will have this option, since certain cases are limited to a particular forum based on their design or the issues involved, when the option presents itself litigants will often make an effort to keep the case in the chosen forum. Issues regarding the selective choice of forum were addressed in Garber v. Wal-Mart Stores, Inc., a recent decision from the United States District Court for the Southern District of Florida.

The Garber case arose from a slip-and-fall accident at a Wal-Mart store in Delray Beach, Florida. Following the fall, the injured customer brought a premises liability suit against Wal-Mart in the Circuit Court of the Fifteenth Judicial Circuit of Florida. Following initiation of the case, the defendant served a Request for Admission on the plaintiff, which asked in part that the plaintiff admit she was seeking less than $75,000 in damages. The plaintiff denied the admission. In a following response to interrogatory requests served by the defendant, the plaintiff claimed more than $88,000 in medical expenses. Thereafter, the defendant filed a notice of removal to federal court, since the action could’ve originally been brought in federal court because the parties were residents of diverse states and the amount in controversy exceeded $75,000. The parties then entered into a joint stipulation to dismiss the case without prejudice. Following dismissal of the first action, the plaintiff brought a second action in Florida state court, which was substantially similar to the first, except for the fact that the plaintiff added a new defendant, the manager of the Wal-Mart where the fall occurred. Following initiation of the second suit, Wal-Mart again filed a Notice of Removal. Following removal, the plaintiff made a motion in federal court to have the case remanded back to state court, since there was no federal subject matter jurisdiction. Therefore, at this juncture, the federal court needed to determine whether the presence of the new defendant eliminated possible federal jurisdiction such that the action could no longer be removed to federal court and, accordingly, should be remanded to back to state court.

November 26, 2014

Third District Court of Appeal Addresses Liability for Subcontractor Employee Injuries

by Frankl Kominsky Injury Lawyers

Although workers’ compensation is supposed to be simple in practice, a common issue that arises from workplace accidents at construction sites is clarifying liability when there is a subcontractor relationship or multiple subcontractor relationships. The issues regarding workers compensation liability and civil suit immunity following the injury of a subcontractor worker are at the center of the Third District Court of Appeals’ recent decision in VMS, Inc. v. Alfonso (PDF download).

Alfonso started with a long chain of subcontractor relationships. At the beginning of the chain is the Florida Department of Transportation, which contracted with VMS to maintain and manage certain roadways in Palm Beach, Broward, and Miami-Dade Counties. As part of the contract, VMS was required to maintain workers’ compensation insurance, which it did. Next, VMS subcontracted some of the roadwork to ABC, which was also required pursuant to its subcontract with VMS to maintain workers’ compensation insurance, which it did. Thereafter, ABC hired an individual to handle some of the work that ABC had obligated itself to do. To accomplish this task, the individual hired several day laborers, including the plaintiff in this suit, but he never acquired workers’ compensation insurance. While performing roadwork covered by this labyrinth of subcontracts, the plaintiff was severely burned by hot tar that spilled on him. It is disputed whether VMS had knowledge of the accident, but the individual who hired the day laborer and ABC did have knowledge, and neither ABC nor VMS reported the incident to their respective workers’ compensation insurers.

November 19, 2014

Second District Court of Appeal Reverses in Medical Negligence Suit

by Frankl Kominsky Injury Lawyers

A key issue that arises in negligence litigation generally and medical negligence cases in particular is properly defining and asserting the applicable duty of care. Since the existence of a legally cognizable duty of care is essential for every claim of negligence, successfully proving that a defendant’s conduct was negligent depends on properly fitting that conduct within the borders of a recognized duty of care. This requirement is at the heart of the Second District Court of Appeal’s recent decision in Granicz v. Chirillo, in which the court addressed whether a physician could be held liable for medical negligence following the suicide of a patient.

As noted above, the Granicz litigation arose from a patient’s suicide on October 9, 2008. Prior to her suicide, the patient had been receiving treatment for depression from her primary care physician, the defendant in this case. Prior to 2005, the patient had been taking Prozac, but the physician switched her medication to Effexor at the time he began treating the patient in 2005. At some time in June or July of 2008, the patient stopped taking her medication because of side effects. On October 8, 2008, the patient called the office of the physician and spoke with a medical assistant. The patient told the medical assistant that she hadn’t been feeling right since June or July and had ceased taking her Effexor. In addition, the patient informed the medical assistant that she was under mental strain, been prone to crying, suffering from gastrointestinal problems, and having sleeping issues that resulted in increased reliance on sleeping medication. The medical assistant recorded this information in a note for the physician. The physician reviewed the note shortly thereafter and decided to change her medication to Lexapro and refer her to a gastroenterologist. Afterward, an employee from the physician’s office called the patient and told her she could pick up samples of Lexapro as well as a prescription for the drug from the office, which the patient did later that day. However, an appointment with the physician was never scheduled, and the physician never spoke with the patient directly. On the following day, the patient’s husband found the patient hanging in the garage of their home.

November 12, 2014

Marcum v. Hayward: Liability for Unconscious Drivers in Florida

by Frankl Kominsky Injury Lawyers

Although a driver having an unanticipated seizure and slamming her vehicle into the vehicle of someone else sounds more like a TV drama than the facts of an actual case, the facts underlying the Second District Court of Appeal’s recent decision in Marcum v. Hayward show that situations that sound imaginary can indeed happen in reality.

The Marcum litigation was set into motion by a motor vehicle accident in Central Florida. One of the defendants in the case was driving a vehicle owned by her employer, Artistic Pools of Florida, Inc., and testified that while she was driving she felt she had temporarily lost consciousness, regained it, and then lost it again before she saw paramedics. A fellow employee riding in the car similarly testified that the driver stated she felt she had lost consciousness and that she didn’t feel well. Apparently, she had asked her passenger where they were headed and soon thereafter lost consciousness. The coworker also testified that after the driver lost consciousness he tried to use his hand to engage the brake but was prevented by the seat belt from doing so. After the driver lost consciousness, the vehicle collided with the vehicle of the victim, who said that she found the defendant suffering from a seizure when she walked to her car after the crash. Following the accident, the victim brought suit against the driver, Artistic Pools, and the driver’s auto liability insurer, asserting claims of negligence. The driver moved for a directed verdict, arguing that she could not be found negligent because she had suffered a sudden, unforeseeable seizure, and the time between the onset of this seizure and the crash was insufficient for preventative measures to be taken. The trial court denied the motion for a directed verdict.

November 5, 2014

South Florida Appeals Court Enforces Forum Selection Clause in Cruise Ship Negligence Suit

by Frankl Kominsky Injury Lawyers

Although contract formation is often considered a formal process involving parties sitting at a conference table negotiating terms and memorializing a final agreement, every day people unknowingly enter into binding agreements that have sweeping implications for their rights. The realities of modern contracting are at the center of the Third District Court of Appeals’ recent decision in Royal Caribbean Cruises, Ltd. v. Clarke, in which the court held that the forum selection provision of a contract contained on the cruise line ticket should have been enforced by the trial court.

The Clarke litigation began when a passenger allegedly injured while abroad a Royal Caribbean Cruise vessel brought a negligence action against the company on October 9, 2013 in Miami-Dade County. The action was initiated only a few days before the expiration of the one-year limitations period imposed by the ticket contract. Shortly after the claim was brought, Royal Caribbean moved to have the case dismissed, arguing that the claim had been improperly brought in state court rather than federal court, as was provided by the forum selection provision of the ticket contract. In support of this motion, Royal Caribbean submitted an affidavit stating that the plaintiff, like all other passengers, needed to check in and accept all the terms of the ticket contract before boarding the vessel. The trial court denied the motion, holding that there was no evidence that the plaintiff actually received and read the ticket contract provisions. However, the Third District Court of Appeal unanimously reversed the trial court’s ruling and dismissed the case.

October 29, 2014

Fourth District Court of Appeal Affirms Dismissal of Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

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.