Subject: Financial Discovery—Referral to Treater by Plaintiff Attorney
Noting a distinction from Worley, on 07/15/2020, the 3rd DCA advised that when a plaintiff “opens the door” and places her credibility at issue by claiming that she was referred to her chiropractor by the emergency room, the fact that her lawyer referred her (and the Letter of Protection) are admissible. In Ruchimora v. Grullon, the 3rd DCA affirmed the trial court’s decision to allow disclosure of the referral relationship given plaintiff’s (and plaintiff counsel’s) untrue assertion that the referral came from the emergency physician. You can’t hide behind Worley and lie about the source of a treating physician.
Check it out!
Ruchimora v. Grullon
Subject: Financial Discovery - Defense Experts
On 6/26/19 in Dodgen v Grijalva, the 4th DCA joined the 5th in certifying to the Florida Supreme Court whether defense firms & insurers are being treated unfairly in being subject to financial discovery regarding treating/hybrid experts when such discovery is not allowed from plaintiffs under Worley. Appears our newly reconstituted FSC is actively considering the disparate treatment issues.
Check it out and stay tuned!
Dodgen v Grijalva
Update: The Battle Continues
On 6/17/20 in Tahan v. Munoz, the 3rd DCA weighed into this dispute with the strong and well-researched concurrence of Judge Miller:
Worley has served to obfuscate the transparency in financial bias arguably imputed to plaintiff-retained experts, but not defense-retained experts. … [T]his incongruity compromises the truth-seeking function and fairness of the trial process. Fair play and common sense dictates that what is sauce for the goose is sauce for the gander, thus, the continuing viability of Worley should give us pause for reflection.
Tahan v. Munoz
Update II: Florida Supreme Court Sets Oral Argument
In Younkin v. Blackwelder, the Florida Supreme Court has scheduled oral argument on these issues of “great public importance” on 9/10/20. (SC19-385)
Subject: Failure to Transfer, Even for Alleged Economic Reasons, Constitutes Medical Negligence Claim
On 05/29/2020 in Rockledge HMA, LLC, et al. v. Lawley, the 5th DCA granted certiorari and found, as a matter of law, that the alleged failure to complete a medically necessary transfer—even as part of an alleged scheme to increase hospital admission rates for strictly financial reasons—sounds in medical malpractice and is subject to presuit investigation (and presumably the two-year statute of limitations). The appellate court found that the claim arose from an alleged lack of treatment, effecting a medically necessary transfer. Even if the alleged reason for the improper decision was economic interest, the underlying failure to treat/failure to transfer is a claim “arising out of the rendering of, or the failure to render, medical care or services.”
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Rockledge HMA, LLC, et al. v. Lawley
Subject: Dismissal Appropriate without Presuit Investigation
On 05/20/2020, in Henderson Behavioral Health, Inc., et al. v. Cortes, the 4th DCA granted certiorari and imposed dismissal for failure to comply with presuit, despite Plaintiff’s allegations that the claim involved ordinary negligence vs. professional negligence. While doubtful questions are generally resolved in favor of the claimant, the determination of whether a complaint alleges a claim for medical malpractice is a legal one. In this case, the allegation that a hospital failed to discharge/transfer a patient with appropriate medications was clearly a claim for medical malpractice governed by Chapter 766:
We have no difficulty or doubt in concluding that Plaintiff’s claims sound in medical negligence. … The trial court clearly departed from the essential requirements of law in denying the motions to dismiss.
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Henderson Behavioral Health, Inc., et al. v. Cortes
Subject: Patient/Resident Information is Not Normally Discoverable
The 1st DCA has affirmed the principle that disclosure of identifying information for “stranger” patients/residents can only be allowed with a “showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information …” In Saints 120 v. Moore, the 1st DCA granted certiorari and overturned a trial court order requiring disclosure of the names and demographic information regarding the other residents in an SNF unit where the plaintiff/resident fell. Given that the Complaint alleged that this was an “unwitnessed fall”, almost by definition, the requested discovery was overbroad and improper. As the right of privacy is established by the Florida Constitution, confidential information of patients/residents is fundamentally protected.
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Saints 120, LLC v. Moore
Subject: Presuit Expert Requirement Not Waived by Co-Defendant Failure to Produce Medical Records
The 2nd DCA granted Cert and quashed/reversed the denial of a Motion to Dismiss a malpractice claim based upon plaintiff’s failure to supply a presuit affidavit. In Brundage v. Evans, the Court held that the hospital’s alleged failure to timely produce medical records under §766.204(1) did not release the plaintiff from the requirement to produce an expert affidavit against the treating physician, even if his care was solely provided within the hospital. The Complaint must be dismissed as to the physician, given that plaintiff did not timely provide an affidavit against him within the Statute of Limitations.
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Brundage v. Evans
Subject: Florida Supreme Court No Longer “Approves” Standard Jury Instructions
Effective 04/01/2020, the Florida Supreme Court adopted new Florida Rule of Judicial Administration 2.270 authorizing the jury instruction committees to approve and publish the standard jury instructions without Supreme Court approval. The Florida Supreme Court is no longer deciding what the jury instructions should say—this is being done by the jury instruction committees.
While there is still safety in utilizing standard jury instructions, this move reaffirms the absence of any presumption of Supreme Court approval or correctness for the standard jury instructions.
The standard jury instructions can be found at: https://jury.flcourts.org.
The Supreme Court opinion can be found at: https://www.floridasupremecourt.org/content/download/630267/7163468/file/sc20-145.pdf.
Subject: Plaintiff Presuit Affidavit Must Establish Deviation & Causation
The 1st DCA recently affirmed the dismissal of a medical malpractice claim for failure of the presuit affidavit to establish both deviation from the standard of care and causation. In Howell v. Balchunas, the Court confirmed that §766.203(2) requires a plaintiff to establish, with reasonable medical probability, deviation and causation prior to the expiration of the statute of limitations. Conversely, a defense affidavit need only corroborate reasonable grounds for lack of a negligent injury.
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Howell v. Balchunas
Subject: Arbitration Damage Caps Upheld
On 12/18/2019, the 3rd DCA, in reversing a trial court ruling, held that the medical malpractice arbitration damage caps of §766.207(7) and §766.209(4) remain presumably constitutional. The Court refused the invitation of plaintiff and amicus to expand the McCall and Kalitan decisions to the noneconomic damage caps applicable when a defendant accepts legal responsibility and offers to arbitrate damages.
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Taylor Poole, M.D. v. Deborah DeFranko
Subject: Non-incident Data Not Discoverable Under Amendment 7
On 12/11/2019, the 2nd DCA confirmed the continuing viability of peer review privilege under §395.0191(8) in regard to non-adverse incident data. In Tarpon Springs Hospital Foundation, Inc. v. White, the Court expanded upon their Shahbas decision in upholding the statutory privilege in regard to “general credentialing information unrelated to an adverse medical incident”— in this case, data regarding when a defendant physician became Board eligible. While Amendment 7 abrogates the privilege for “adverse medical incidents”, the Amendment does not apply to every document and data considered by a hospital credentialing or peer review committee. The Court also held that its certiorari jurisdiction was properly invoked by the trial court’s order requiring production of statutorily privileged documents.
Check it out!
Tarpon Springs Hospital Foundation, Inc. v. White
The Florida Bar sends Julie Brodis to Advanced Trial Advocacy program at Oxford
During the summer of 2019, EIFG Partner, Julie Brodis, was honored by the Trial Lawyers Section of The Florida Bar with the awarding of the Bennett Scholarship and attended The Advanced International Trial Advocacy program at Keble College in Oxford, England. For five days and nights in residence at Keble, she joined an international contingent of trial lawyers subjected to intense trial advocacy training by leading advocates from England, Ireland, Hong Kong, South Africa, Antigua & the Cayman Islands. She brings these finely honed advocacy skills and added confidence back home to Central Florida.
Congratulations Julie, and welcome home!
For more information, see page 9 of The Edge – Florida Bar Trial Lawyers Section – Winter 2019.
Subject: Medical/Ordinary Negligence – Patient Fall
In the latest “gray area” case distinguishing between medical and ordinary negligence, on 08/21/2019 the 4th DCA in North Broward Hospital District v. Slusher granted a petition for certiorari and dismissed a patient fall claim against Broward Health, finding that the nurse’s actions in answering her cell phone while moving a “fall risk” patient from his bed did constitute medical negligence.
Check it out!
North Broward Hospital District v. Slusher
Subject: Punitive Damages/Elder Abuse
In two recent DCA opinions, commonsense limitations have been placed on some punitive damages and alleged elder abuse claims.
In Carpenters Home Estates v Sanders, the 2nd DCA reversed the trial court’s decision to allow a punitive damages claim under Chapter 400, based on the absence of “sufficient admissible evidence” within plaintiff’s proffer to establish a claim for punitive damages at trial. Although technically decided on procedural grounds, this is one of the first appellate cases to definitively rule on the weight of plaintiff’s proffered admissible evidence in support of a motion to amend to add punitive damages under §400.0237, Florida Statutes.
Carpenters Home Estates v Sanders
In Specialty Hospital-Gainesville v Barth, the 1st DCA ruled that as a matter of law, properly pled medical/nursing negligence allegations do not also support a claim for “abuse or neglect of a vulnerable adult” under §415.1111, Florida Statutes.
“This is the relevant analysis to determine whether a claim asserting abuse of a vulnerable adult can be brought under Chapter 415. If the claim involves medical negligence which requires compliance with the pre-suit procedures and other provisions of Chapter 766, the claim cannot be asserted under Chapter 415; if the claim asserts non-medical negligence or criminal conduct, it can be asserted under Chapter 415.”
As these statutory claims carry attorney fees, some plaintiff attorneys have routinely tried to include such alternative allegations in all healthcare claims involving elderly persons. The Barth decision gives strong support for the striking of such inappropriate claims throughout the state.
Check them out!
Specialty Hospital-Gainesville v Barth
Subject: Daubert is Back!
In an opinion issued on May 23, 2019 concerning the rules of evidence, the Florida Supreme Court recedes from Frye and adopts the Daubert amendment set forth in §90.702 as a procedural rule of evidence effective immediately.
Check it out!
IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE.
Subject: No Nonparty Duty to Preserve Evidence for Potential Litigation
In Shamrock v Remark the Florida 5th DCA reviews Florida spoliation law (and dicta) and holds that absent a legal or contractual duty or a pending discovery request, a non-party has no duty to preserve evidence based on alleged relevance in potential litigation. Summary judgment affirmed.
Check it out.
Shamrock v Remark
Subject: No Non Delegable Duty—Tabraue v Doctors Hospital
In the very well reasoned opinion of Tabraue v Doctors Hospital, on 3/27/19, the 3rd DCA specifically rejected, as a matter of law, non delegable duty liability on the part of a hospital for the actions of independent contractor physicians working in the emergency department.
In adopting and expanding on the 2nd DCA opinion in Reth v Tarpon Springs, the 3rd DCA specifically rejected the 4th DCA decisions in Wax & Irving, certifying conflict to the newly reconstituted Florida Supreme Court.
An excellent & well reasoned opinion.
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Tabraue v Doctors Hospital
On 7/24/2019, the Florida Supreme Court accepted conflict jurisdiction as certified by the 3rd DCA in Tabraue v Doctors Hospital.
Amici curiae are already lining up and the case will be briefed this fall. Stay tuned!
Order Accepting Jurisdiction
Subject: Discoverability of Financial Data from Treating Physicians
In Lake Worth Surgical Ctr., Inc. v. Gates, the 4th DCA allowed tailored discoverability (under a confidentiality agreement) of billing and reimbursement data from third party healthcare providers. Examples of potentially discoverable material; percentage of practice comprised of personal injury claimants (presumably treating under LOP) and amounts billed to insurers for same procedures. Good internal citations and discussion of these issues, including detailed instructions on how to obtain this information in an appropriate case. Check it out.
Subject: Same Specialty Experts
On 1/25/19, the 5th DCA issued two (2) decisions upholding the “same specialty” requirement (§766.102(5)) in medical malpractice actions.
Check out both Riggenbach v Rhodes & Davis v Carr.