Recent Legal News

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.

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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.

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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.

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Specialty Hospital-Gainesville v Barth

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

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.

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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.

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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.

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