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.
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: 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.
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.
Check it out!
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.