Personal Injury Case Law

Published on: November 20, 2017

Florida Supreme Court Strikes Down Burdensome Defendant-Friendly Discovery Rule in Recent Medical Malpractice Case

Earlier this month, the Florida Supreme Court issued a written opinion in a case that will likely have great implications across the State. The case involved allegations of Florida medical malpractice brought by the wife of a man who died while in the defendant doctor’s care. The issue involved a discovery rule that allowed for a defendant doctor to compel the plaintiff to release the names of previous health care providers and allowed for the defendant to arrange meetings with the providers without the plaintiff or the plaintiff’s attorney present.

Ultimately, the court concluded that the plaintiff had the ability to assert her husband’s right to privacy to challenge the discovery rules and that the rules were unconstitutional because they burdened the plaintiff’s right to access the court system.

The Discovery Rules

The discovery rules at issue allowed for informal discovery, whereby the defendant could request certain information from the plaintiff. Among the information that could be requested by the defendant were the names of all previous medical care providers. A 2013 amendment to the rules also allowed for the defendant to arrange ex parte meetings with the medical care providers. The plaintiff challenged the aspect of the rules that allowed for ex parte meetings.

Continue reading →

Published on: November 9, 2017

Is the Jury’s Verdict Final in a Florida Personal Injury Case?

By Cecere Santana, PA

When a party is injured due to the allegedly negligent act of another person, company, or government entity, the injured party can seek compensation for their injuries through a South Florida personal injury lawsuit. Many of these cases are resolved in pre-trial settlement negotiations, with less than 5% of cases proceeding to trial. The reason most cases settle before reaching trial is because the parties involved prefer the certainty of agreed-upon negotiations rather than the uncertainty of a jury trial.

In addition to a jury trial being an uncertainty, once a jury enters a verdict in favor of a party, it is usually final. There are several exceptions, however. The first exception is if the judge overseeing the trial makes a legal error. For example, if a judge prevents a certain key witness from testifying or makes an erroneous legal ruling, the party against which that ruling was made can appeal that specific issue to a higher court. If that party is successful on appeal, the case will usually get remanded back to the lower court with instructions on how to proceed.

Another exception to the general rule of finality is in a post-trial motion arguing that the jury’s verdict was against the weight of the evidence. These motions, brought after both parties have closed and the jury has entered a verdict, argue that the jury came to the wrong conclusion given the evidence presented.

Continue reading →

Published on: October 25, 2017

Florida Car Accident Plaintiff’s Non-Compliance with Contractual Term Not a Basis for Dismissal Due to Defendant’s Failure to Object

By Cecere Santana, PA

Earlier this month, an appellate court issued a written opinion in a Florida car accident lawsuit that illustrates the difficulties some motorists encounter when filing insurance claims after an accident. The case presented the court with the opportunity to discuss when a plaintiff’s failure to fulfill a “condition precedent” prior to filing a claim with his own insurance company can be fatal to a plaintiff’s claim. The court concluded that, generally, such a failure will prevent the plaintiff from recovering damages; however, when the insurance company fails to raise the issue in a timely manner, the objection will be considered waived.

The Facts of the Case

The plaintiff sustained injuries in a Florida car accident. The plaintiff was a passenger in a car that was being operated by her father. The plaintiff claimed that the other driver was at fault, but that driver did not have adequate insurance coverage to compensate the plaintiff for the injuries she sustained.

At the time of the collision, the plaintiff was covered under two insurance policies: her mother’s policy with Allstate and her father’s policy with Geico. Both policies had underinsured/uninsured motorist insurance. The Geico policy’s limit was $20,000, and the Allstate policy’s limit was $25,000. The Allstate policy contained an “other insurance” clause, stating that the insured must exhaust all other insurance policies available before a claim under the Allstate policy.

Continue reading →

Published on: September 15, 2017

Florida Appellate Court Concludes Medical Malpractice Plaintiff’s Case Was Timely

By Cecere Santana, PA

Earlier this month, a Florida appellate court issued a written opinion in a Florida medical malpractice case that required the court to determine if the plaintiff’s case was timely under the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s case was properly filed within the applicable statute of limitations, and a lower court’s finding to the contrary was reversed. As a result, the plaintiff’s case will be permitted to proceed toward trial or settlement negotiations.

The Facts of the Case

The plaintiff was a patient of the defendant radiologist. In 2008, the plaintiff underwent a mammogram, and the defendant interpreted the results. Despite finding a nodule that he knew at the time was likely to be cancerous, the defendant did not inform the plaintiff or her primary care doctor.

Later that year, the defendant’s office called the plaintiff, requesting she come in for a follow-up. Again, no mention was made of the nodule and the possibility that it was cancerous. It was not until 2010, following a subsequent mammogram, that the plaintiff realized she had breast cancer. By that time, the cancer had metastasized and spread to her bones. The plaintiff’s breast cancer was successfully treated with chemotherapy, but the metastatic cancer in her bones continued to progress.

Continue reading →

Published on: July 20, 2017

Florida Appellate Court Determines Conflicting Evidentiary Rulings Unfairly Hurt Personal Injury Plaintiff’s Case

By Cecere Santana, PA

Earlier this month, Florida’s Fourth District Court of Appeal issued a written opinion in a Florida personal injury case brought by a former smoker who had developed lung cancer and Chronic Obstructive Pulmonary Disease (COPD). The plaintiff’s case was filed against the manufacturer of the cigarette brand that she used to smoke and claimed that her addiction to cigarettes was what caused her disease.

The case presented the court with the task of determining whether the trial court’s conflicting evidentiary rulings regarding the plaintiff’s expert warranted a new trial. Ultimately, the court concluded that the trial court’s error likely did have an effect on the jury’s decision to find for the defendant and ordered a new trial to take place.

The Lower Court’s Rulings

The lower court first determined that the plaintiff’s treating pulmonologist was not qualified to testify that the plaintiff was addicted to cigarettes. In a subsequent ruling, the lower court then allowed the same pulmonologist to respond to questioning from the defense about the plaintiff’s ability to quit smoking. The pulmonologist explained that the plaintiff “could quit when she was sufficiently motivated to do so.”

Continue reading →

Published on: June 7, 2017

Florida Court Discusses and Limits “Assumption of the Risk” Doctrine

By Cecere Santana, PA

Last month, Florida’s Fifth District Court of Appeals issued a written opinion in a premises liability case brought by a man who tripped and fell on an unsecured cord while rehearsing with a church band. The court had to determine if the plaintiff’s potential knowledge of the hazard – having been playing with the band for several years – resulted in his expressly assuming any risk of injury. Ultimately, the court concluded that under Florida law, the doctrine of express assumption of the risk applies only in certain limited situations, one of which was not present in the plaintiff’s case.

The Facts of the Case

The plaintiff joined the defendant church in 2008. In the next year, he started playing in the church band. For the next two years, there were no issues; however, in 2011, the plaintiff tripped and fell on the bass guitarist’s electrical cord. The plaintiff filed a premises liability lawsuit against the church, claiming that the church was negligent in failing to maintain the premises in a reasonably safe condition.

The church argued that it should not be held liable because the plaintiff knew or should have known about the dangerous condition and assumed the risk of injury by performing on stage for the past two years. The trial court agreed, finding that the plaintiff expressly assumed any risk of injury, and dismissed the case.

Continue reading →

Published on: May 24, 2017

Florida Appellate Court Clarifies What Constitutes “Fraud on the Court,” Reversing the Dismissal of Plaintiff’s Car Accident Lawsuit

By Cecere Santana, PA

Earlier this month, a Florida appellate court issued a written opinion in a car accident case that was brought by a man who was rear-ended by a truck while he was stopped on the highway. The case required the court to determine if the plaintiff’s potentially inconsistent statements rose to the level of fraud on the court. Ultimately, the court determined that the plaintiff disclosed all of the necessary information; however, the fact that some of the information he provided was contradictory was relevant to his credibility, which should be weighed by a jury.

The Facts of the Case

The plaintiff was involved in an accident while he was stopped on the highway. The driver of the truck that struck him was later determined to be drunk. About four years later, the plaintiff filed a personal injury lawsuit against the other driver, as well as the driver’s employer.

Two months after the plaintiff filed this case, he was involved in another rear-end collision. This case involves the differences in how the plaintiff described the second accident. When he filed an insurance claim after the second accident, he described it as “hard impact very fast.” He also explained that the rear bumper was heavily damaged. However, the plaintiff’s testimony in this case characterized the accident as a minor one that only involved a “few dollars” worth of damage. In fact, the plaintiff initially did not even disclose the second accident when he was asked whether he was involved in any other accidents.

Continue reading →

Published on: May 11, 2017

Florida Appellate Court Determines Water Company May Be Liable for Condition of Pavement Surrounding In-Ground Valve

By Cecere Santana, PA

Earlier this month, a Florida appellate court issued a written opinion in a premises liability case brought by a woman who tripped on a water valve while walking on a public road. The appeal resulted from a lower court decision finding that the water company did not have a duty to maintain the asphalt area around the valve, which had become separated from the valve, resulting in the valve sticking up above ground level. However, the appellate court reversed the lower court’s decision, holding that the water company may still have a duty to maintain the valve, even if the accident was caused in part by the surrounding asphalt becoming separated from the valve.

The Facts of the Case

The plaintiff was walking on a public road when she tripped and fell on a water valve cover that was protruding from the street’s surface. As a result of her fall, the plaintiff sustained injuries and filed a personal injury lawsuit against both the water company as well as the city that owned the road. The plaintiff argued that the water company had a duty to keep the valve in safe condition and to prevent it from becoming a hazard to pedestrians, such as herself.

At trial, evidence was presented that showed the valve had separated from the surrounding asphalt, causing the valve to protrude above ground level. After the accident, the water company leveled the asphalt around the valve so that further injuries would not occur.

Continue reading →

Published on: April 10, 2017

Florida Appellate Court Reverses Lower Court’s Decision, Allowing Premises Liability Case To Proceed to Trial

By Cecere Santana, PA

The Second District Court of Appeals recently issued a written opinion in a premises liability case, reversing a lower court’s ruling that had dismissed the plaintiff’s lawsuit based on a lack of evidence that the defendant knew or should have known about the hazard that allegedly caused the plaintiff’s fall. Specifically, the appellate court held that the lower court was improper to base its decision on the credibility of the plaintiff’s expert witness.

The Facts of the Case

The plaintiff slipped and fell after he stepped in a puddle of oil that had formed near an elevator on the defendant’s property. The plaintiff explained that he did not see the puddle before he stepped in it, but after he got up, he noticed that it was coming from underneath the door to the elevator service closet.

The plaintiff’s fall was reported, and the defendant called an elevator technician to fix the leak. The technician determined that the leak was due to a faulty seal and that the oil was dripping at the rate of one drip every two seconds. The technician noted that the puddle was approximately four feet by five feet, and about a quarter of an inch deep. The technician did not know how long the puddle had been there; however, the elevator had been serviced three days before, and there was no leak at that time.

Continue reading →

Published on: March 29, 2017

Florida Courts Continue to Invalidate Improperly Executed Arbitration Contracts in Nursing Home Abuse and Neglect Cases

By Cecere Santana, PA

Earlier this month, the District Court of Appeal for Florida’s Second District issued a written opinion in a nursing home negligence case. The issue the court had to decide was whether the arbitration clause that was signed by the deceased resident’s daughter could bind the resident’s estate in a subsequent wrongful death lawsuit against the nursing home. The court held that the agreement could not bind the estate to arbitrate, and it allowed the estate to pursue its claims through the court system.

The Facts of the Case

The case arose after a nursing home resident died while in the care of the defendant nursing home. At the time of her death, as well as prior to her admission to the nursing home, the resident was not competent to make her own medical decisions. Thus, the woman’s daughter was helping her get placed into a nursing home facility. As a part of this assistance, the daughter arranged for her mother to stay at the defendant nursing home and signed an arbitration agreement prior to her mother’s admission.

At the time the daughter signed the arbitration agreement, her mother had not assigned a power of attorney to her daughter. In fact, it was undisputed that the daughter was merely acting as a health care proxy for her mother and did not have any control over financial or legal matters involving her mother. However, when the daughter signed the arbitration agreement, she signed on the line designated for a “legal guardian.” The agreement defined a legal guardian as someone “who, under independent legal authority, such as a court order has authority to act on the Resident’s behalf.”

Continue reading →