Case Law Update

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					                     WICKER, SMITH, O’HARA, MCCOY & FORD, P.A.

                                       MAY / JUNE 2010




                         Case Law Update
IN THIS ISSUE
Defense’s claim that plaintiff’s injuries were from decision to undergo “unnecessary” surgery leads
to jury confusion and new trial.

Known history of cerebral aneurysm creates genuine issue as to foreseeability and suddenness in
motor vehicle accident.

Attorney’s fees denied following the plaintiff’s voluntary dismissal without prejudice.

Court holds that the impact rule only applies to claims for simple negligence, not claims for
intentional torts.

The mere conflict between discovery depositions, interrogatories and records disclosed during the
discovery process should not warrant dismissal for fraud.

Hospital seeks review of non-final order denying motion
for protective order as to the discovery of confidential trade
secret materials.

Court denies attorney’s fees based on proposal for
settlement conditioned upon acceptance of both plaintiffs.

Florida law cautions against motion for directed verdict in
negligence cases.




    MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                                Case Law Update


DEFENSE’S CLAIM THAT PLAINTIFF’S INJURIES WERE FROM DECISION TO UNDERGO
“UNNECESSARY” SURGERY LEADS TO JURY CONFUSION AND NEW TRIAL.
  Nason v. Shafranski,               Plaintiff’s appeal a jury verdict which awarded them only a small
   35 Fla. L. Weekly portion of the damages they sought as a result of injuries
   D943a (Fla. 4th DCA plaintiff sustained in a car accident. The defendants admitted
                                     negligence in causing the accident but disputed the amount of
   April 28, 2010)                   damages claimed by plaintiff. On appeal, plaintiff contends that
                                     the trial court erred by allowing defendants to present expert
medical testimony regarding unnecessary surgeries and thereby shift the blame for plaintiff's
damages from defendants to plaintiff's treating physician. Plaintiff argues that the trial court
compounded the error by refusing to give plaintiff's requested jury instruction that the defendants
were responsible for any damages resulting from any negligent or improper medical treatment. The
4th DCA agreed that the trial court’s refusal to give such an instruction was reversible error.

It has long been the law in Florida that when one who is negligent injures another causing him to
seek medical treatment, negligence in the administration of that medical treatment is foreseeable and
will not serve to break the chain of causation. The key case for this well-established principle is
Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977). In that case, which also arose from a car accident,
the defendants filed a third-party complaint against the treating physician, alleging that negligent
treatment had caused all or part of the plaintiff's injuries. Id. at 704. The Florida Supreme Court held
that the third-party malpractice claim could not be tried as part of the main lawsuit over the
plaintiff's objection. Id. at 706.

The defendants argue that Stuart v. Hertz is inapposite because they were merely arguing below that
the surgery was unnecessary, not that the physician committed medical malpractice. However,
Florida law recognizes that “unnecessary surgery may constitute medical malpractice where it
deviates from the standard of care.” Edwards v. Simon, 961 So. 2d 973, 975 (Fla. 4th DCA 2007).

In this case, the jury's confusion was apparent from the note it sent to the judge during
deliberations. It sought guidance on how to handle the defendants' evidence that Plaintiff’s surgeon
was “unscrupulous.” The judge's failure to dispel that confusion by granting plaintiff's request for
the special instruction requires us to reverse and remand for a new trial.




                                                                                               Page 2 of 8
                       MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                                   Case Law Update

KNOWN   HISTORY OF CEREBRAL ANEURYSM CREATES GENUINE ISSUE AS TO
FORESEEABILITY AND SUDDENNESS IN MOTOR VEHICLE ACCIDENT.

This is a motor vehicle accident case in which the Plaintiff sued for negligence. Final summary
judgment was entered for defendants, which effectively ruled that the defendants had established its
affirmative defense that the defendant suddenly and unexpectedly lost consciousness before the
crash. The Fifth District reversed, finding that there were genuine issues of material fact on
suddenness and foreseeability.

To win on this affirmative defense, the Defendant must establish Abreu v. F.E. Dev.
the following:                                                           Recycling, Inc., 35
1.      The defendant suffered a loss of consciousness or capacity;      Fla. L. Weekly D1018
2.      The loss of consciousness or capacity occurred before the (Fla. 5th DCA May 7,
        defendant’s purportedly negligent conduct;
3.      The loss of consciousness was sudden;
4.      The loss of consciousness or capacity was neither foreseen, nor foreseeable.

It was undisputed that the defendant in this case lost consciousness while driving when he suffered a
brain aneurysm, which caused the motor vehicle accident. Although the defendant provided an
expert opinion in support of summary judgment, which stated that it would have been impossible
for the patient to know prior to the accident that he had an aneurysm, the plaintiff provided medical
notes which stated that an angiography was recommended due to a known history of cerebral
aneurysm. The defendant also had a history of severe vascular disease. Medical records also
indicated that on the date of the accident, Woodall had a severe headache for hours and his head
was spinning. He was also having blurry vision and felt like he was going to pass out. Based on the
medical records, the Fifth District found that there were genuine issues as to foreseeability and
suddenness.

ATTORNEY’S FEES DENIED FOLLOWING THE PLAINTIFF’S VOLUNTARY DISMISSAL
WITHOUT PREJUDICE.
                                                                           Smith v. Loews
Plaintiff below appealed a final judgment awarding Defendant               Miami Beach Hotel
attorney's fees and costs pursuant to a proposal for settlement served
in accordance with Florida Statute §768.79. Attorney’s fees and costs
                                                                           Operating Co., Inc.,
were awarded following the voluntary dismissal without prejudice of        35 Fla. L. Weekly
Plaintiff’s negligence lawsuit prior to a hearing on the Defendant’s       D1074 (3rd DCA
Motion for Summary Judgment.                                               May 12, 2010)
The Appellate Court reversed the award of attorney’s fees citing MX Investments, Inc. v. Crawford, 700
So. 2d 640, 642 (Fla. 1997) wherein the Florida Supreme Court concluded that to be entitled to an award
of attorney's fees under section 768.79 based on a dismissal of the cause, the dismissal must be with
prejudice. A first voluntary dismissal, without prejudice, does not qualify as an adjudication on the merits
as the Plaintiff may re-file the action. Therefore, it was not appropriate to award attorney’s fees
(compare, Fla. R. Civ. P. 1.420(a)(1) which states a second dismissal is a judgment on the merits).




                                                                                                   Page 3 of 8
                       MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                              Case Law Update


COURT HOLDS THAT THE IMPACT RULE ONLY APPLIES TO CLAIMS FOR SIMPLE
NEGLIGENCE, NOT CLAIMS FOR INTENTIONAL TORTS.

Mildred Thomas died at Lee Memorial Hospital after Thomas v. Hosp. Bd. of
having hip surgery and going into cardiac arrest. Plaintiff Dir. of Lee County, 35 Fla.
alleged that the cardiac arrest was caused by L. Weekly D1038 (Fla. 2nd
administration of a lethal dose of Esmolol during the DCA May 7, 2010)
procedure. Several of the defendants purportedly agreed
to conceal the real cause of death and to instead notify the family that she died from the “stress
of surgery.” As a result, a complete autopsy was not performed. During the funeral, Thomas
received a phone call requesting that the body be returned immediately for a second autopsy,
which revealed a cause of death of Esmolol toxicity.

The personal representative of the estate of Mildred Thomas, filed her complaint alleging (1)
wrongful death by medical malpractice, (2) breach of contract, (3) mishandling of a dead body,
(4) intentional infliction of emotional distress (IIED), (5) invasion of privacy, and (6) intentional
misrepresentation.

After several iterations, Thomas’ sixth amended complaint asserted two counts of medical
malpractice and one count of intentional misrepresentation. Her prayer for damages included
mental and emotional pain and suffering and loss of companionship, guidance, and advice.

Plaintiff appealed a partial summary judgment and the dismissal of her claims for outrage
(IIED), mishandling of a dead body, and invasion of privacy. She also appealed the denial of her
motion for leave to amend the sixth amended complaint to add a claim under 42 USC sec. 1983.
On appeal, the Second District held that neither section 768.21(8) nor the impact rule applied to
bar prayers for nonpecuniary damages in claims for intentional misrepresentation. The Court
found that adult children could recover for emotional pain and suffering because of the claim for
intentional misrepresentation. Further, the Court held that the impact rule only applies to claims
for simple negligence, not claims for intentional torts.

The Second District also found that Plaintiff failed to preserve the issue of dismissal of the
claims for mishandling of a dead body and invasion of privacy because she failed to seek leave
to amend those claims once they were dismissed with prejudice. However, she did seek leave to
add a claim for intentional infliction of emotional distress, and the Court found that making false
statements which led to the interruption of a funeral and a second funeral rises to the requisite
level to state a claim. The denial of Plaintiff’s Motion for Leave was not final or appealable.




                                                                                             Page 4 of 8
                      MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                                   Case Law Update

THE MERE CONFLICT BETWEEN DISCOVERY DEPOSITIONS, INTERROGATORIES AND
RECORDS DISCLOSED DURING THE DISCOVERY PROCESS SHOULD NOT WARRANT
DISMISSAL FOR FRAUD.
                                                                           Gilbert, v. Eckerd
Plaintiff allegedly tripped and fell while walking into Defendant’s        Corp. of Fla., Inc.,
store and filed a negligence suit seeking damages for injuries and         35 Fla. L. Weekly
lost wages. The wage loss claim was calculated based on the                D1060 (4th DCA
Plaintiff’s disputed two-month employment with alleged
employer.                                                                  May 12, 2010)

Plaintiff testified that she worked as a salesperson during January and February 2003, that she had to
resign as a result of injuries sustained in the incident. Plaintiff’s husband testified that Plaintiff never
worked for alleged employer. The owner and general manager of alleged employer testified that he
never hired Plaintiff. He has no record of Plaintiff ever working at alleged employer.
Defendant filed a motion to dismiss for fraud based on the deposition testimony. In the motion,
Defendant asserted that Plaintiff never worked for alleged employer, and that her claim for lost
wages was a knowing and deliberate misrepresentation which constituted a fraud on the court.
In response to the motion to dismiss, Plaintiff produced photocopies of two checks made payable to
her from alleged employer and tax returns and a 1040 form showing her reporting this as “other
income.” The owner of alleged employer testified that the checks were for work performed by her
husband and later reissued in his name.
After a non-evidentiary hearing on the motion to dismiss for fraud, the court granted the motion
and dismissed Plaintiff’s complaint with prejudice. The dismissal order failed to indicate the specifics
for its reasoning in finding dismissal appropriate as a result of fraud.
On appeal the court reversed holding that if the motion to dismiss for fraud would not likewise
survive a motion for summary judgment, the trial court should presume the matter not subject to
dismissal. The mere conflict between discovery depositions, interrogatories and records disclosed
during the discovery process should not warrant dismissal. Factual inconsistencies or even false
statements are better managed through the use of impeachment or other discovery sanctions.
The court held that there was contradictory evidence regarding the Plaintiff’s employment at alleged
employer. Further, there were no accusations by the Defendant that the Plaintiff willfully and with
the intent to deceive submitted false information. The Defendant did not produce clear and
convincing evidence that Plaintiff perpetrated a fraud on the court because it failed to provide an
explanation for the income Plaintiff reported on her tax return from the alleged employer.
Moreover, the trial court did not expressly resolve this issue in its dismissal order.




                                                                                                   Page 5 of 8
                       MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                                Case Law Update

HOSPITAL SEEKS REVIEW OF NON-FINAL ORDER DENYING MOTION FOR PROTECTIVE
ORDER AS TO THE DISCOVERY OF CONFIDENTIAL TRADE SECRET MATERIALS.
                                      (Per Curiam.) Columbia Hospital (the hospital), a non-party in
  Columbia Hosp. Ltd.                 a motor vehicle negligence case, sought review of a non-final
  P’ship v. Hasson, 35                order denying its motion for protective order as to the
  Fla. L. Weekly D1018                discovery of confidential trade secret materials. The petition
  (4th DCA May 12, 2010)              was granted in part, only to the extent that the trial court
                                      ordered production without first allowing the parties an
opportunity to negotiate a confidentiality agreement.
The plaintiff alleged she suffered bodily injuries in connection with the accident and incurred
medical expenses. Defendants sought discovery from the hospital concerning that particular
procedure, including the amount the hospital has charged patients with and without insurance, those
with letters of protection, and differences in billing for litigation patients versus non-litigation
patients. The hospital moved for a protective order, asserting that the information requested by the
subpoena was confidential and amounted to protected trade secrets under Florida law. At the
hearing on the motion, Defendant argued that this information was relevant for a jury to determine
what amount is a reasonable charge for the procedure. The motion for protective order was denied.
The trial court held that the information sought was reasonably calculated to lead to the discovery of
admissible evidence. The judge balanced the hospital's interest in nondisclosure of its confidential
information against Defendants' need for the information, and decided it was more important to
produce the information. The hospital asked whether the information could be produced subject to
a confidentiality order, but the judge said “right now just produce it,” indicating that the matter of a
confidentiality order would be another hearing on another day. It issued a written order denying the
hospital's motion.
The hospital sought certiorari relief, including requiring the trial court to narrowly tailor any order
requiring disclosure in such a way as to protect its trade secret interests. To that extent, the Court
agreed with the hospital.
The hospital contended that the trial court departed from the essential requirements of the law in
ordering production without balancing the interests.
The Court concluded that Defendants sufficiently explained below why they needed the
information: in order to dispute, as unreasonable, the amount of medical expenses that the plaintiff
will seek to recover from them, if the hospital charges non-litigation patients a lower fee for the
same medical services. A claimant for damages for bodily injuries has the burden of proving the
reasonableness of his or her medical expenses. The District Court agreed with trial court’s findings.
The trial court denied the hospital's motion for protective order without taking protective measures.
The Court held that the hospital was entitled to relief only insofar as the trial court should have
stayed the discovery until the parties had an opportunity to negotiate a confidentiality agreement. In
the event the parties are unable to agree, the trial court shall narrowly tailor any order requiring
disclosure in such a way as to protect the hospital's trade secret interests. Granted in part. (Polen,
Stevenson and Levine, JJ., concur.)




                                                                                               Page 6 of 8
                       MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                                   Case Law Update

COURT     DENIES ATTORNEY’S FEES BASED ON PROPOSAL FOR SETTLEMENT
                           CONDITIONED UPON ACCEPTANCE OF BOTH
  Traynor v. Delmonico,
  35 Fla. L. Weekly D1072  PLAINTIFFS.
  (4th DCA May 12, 2010)                    The issue was whether appellants, the defendants below, could
                                            recover attorney's fees based upon proposals for settlement
conditioned upon acceptance of both plaintiffs. Court affirmed trial court’s denial of such fees
citing Attorneys' Title Ins. Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. Apr. 1, 2010) (“a joint offer
of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees . .
. is invalid and unenforceable because it is conditioned such that neither offeree can independently
evaluate or settle his or her respective claim by accepting the proposal.”).

FLORIDA   LAW CAUTIONS AGAINST MOTION FOR                                  Soltwisch v. Pasco
DIRECTED VERDICT IN NENGLIGENCE CASES.                                     County, 33 So. 3d 85
                                                                           (Fla. 2nd DCA April,
Mr. Soltwisch was at a wound clinic receiving hyperbaric
oxygen therapy for some sores on his foot. He began to
                                                                    9, 2010)
experience tremors, and, pursuant to clinic policy, 911 was called and Mr. Soltwisch was
transported to the hospital in a Pasco County Fire and Rescue ambulance. The paramedic noted
normal vital signs and semi-responsiveness. At the hospital, Mr. Soltwisch began to complain of
hip pain. His blood pressure had risen as well. An x-ray showed an acute fracture of his hip. He
underwent surgery to repair the fracture, subsequently acquired an infection and died.

Mrs. Soltwisch filed a wrongful death action against Pasco County. At trial, she testified she
heard a loud bang as the paramedics moved her husband into the back of the ambulance. She
presented two expert witnesses, a doctor and a nurse, who testified that the fracture occurred as a
result of the transport and that the paramedics did not meet the standard of care during the
transport. Nonetheless, Pasco County moved for a directed verdict, arguing that the plaintiff had
failed to establish that Pasco County was either negligent during its care of Mr. Soltwisch or in
exclusive control of the instrumentality that caused the fracture. The trial court agreed and
entered final judgment for the County.

On appeal, the court reversed and remanded for a new trial, noting that Florida law cautions
against a motion for a directed verdict in negligence cases since the evidence supporting a claim
for negligence are frequently subject to more than one interpretation. The appeals court found
that (i) the plaintiff had presented enough evidence from which a jury could conclude that Pasco
County had breached its standard of care, and (ii) the trial court had erred in finding that the res
ipsa loquitur doctrine did not apply.

The res ipsa loquitur doctrine requires that the instrumentality causing the plaintiff’s injury was
under the exclusive control of the defendant, and that the accident is one that would not, in the
ordinary course of events, have occurred absent negligence on the part of the one in control.
Here, evidence was shown at trial that Mr. Soltwisch, who did not have any signs of a hip
fracture before his ambulance ride, somehow managed to acquire a broken hip while he was
under Pasco County’s exclusive control. This was enough to overcome the County’s motion for
a directed verdict.


                                                                                                   Page 7 of 8
                       MIAMI  FORT LAUDERDALE  WEST PALM BEACH  ORLANDO  TAMPA  NAPLES  JACKSONVILLE
MAY / JUNE 2010                                                            Case Law Update


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