Case Law

La Cava & Jacobson, P.A.

Florida Law Weekly – July 27, 2018

Manzaro v.  HCA, (3rd DCA)

In this wrongful death malpractice case, the Manzaro Court held that the Trial Court properly dismissed the complaint where there was a failure to comply with the statutory presuit requirements pursuant to Florida’s medical malpractice laws. The Trial Court conducted a two-hour hearing to afford the plaintiff the opportunity to demonstrate that he conducted a good faith investigation and had a reasonable basis for the claims asserted in the complaint. As the Manzaro Court concluded, while the death certificate asserted that the decedent died of natural causes, the autopsy report of the plaintiff’s expert was inconclusive. There was no corroborating expert affidavit and the Trial Court further found that there were scant details among the facts to explain the actual proximate cause of the wrongful death alleged. The Trial Court also found that it was not at all clear what the doctors and hospitals did or failed to do that constituted a breach of the standard of care that may have resulted in the wrongful death. As this finding was made after the expiration of the two-year statute of limitations, the matter was dismissed with prejudice properly.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 13, 2018

Osceola Regional Hospital v. Calzada, (5th DCA)

In an argument presented by Mr. Azzarone and Mr. Nelson, the Osceola Regional Hospital Court agreed that the Trial Court departed from the essential requirements of law in denying the defendant hospital’s motion to dismiss the complaint on the basis that the plaintiffs failed to comply with presuit. The Osceola Regional Hospital Court held that the Trial Court was required to conduct an evidentiary hearing and make express findings as to whether the plaintiff complied, or did not comply, with Florida’s medical malpractice presuit screening requirements.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 6, 2018

Kim v. Chang, (2nd DCA)

In this case, the Kim Court held that the Trial Court erred in denying a counterclaim defendant’s motion for directed verdict on the counter claim for intentional infliction of emotional distress where the evidence was legally insufficient to establish that the conduct caused severe emotional distress. The Kim Court goes into an extensive analysis of what is required under this cause of action and specifically the elements of outrageous conduct that is beyond all bounds of decency and utterly intolerable in a civilized community. As the Kim Court noted, the definition of severe emotional distress is the equivalent of severe emotional distress that involves the stress that is so severe that no reasonable man could be expected to endure it and that the intensity and duration of the distress are factors to be considered in determining severity. With respect to causation, the Kim Court notes that the distress must be so long-lasting that no reasonable person could expect to endure it the court found that there was no evidence establishing either of these elements and therefore directed verdict should have been entered.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 29, 2018

Bechtel Corporation v. Batchelor – (3rd DCA)

In this premises liability action, the Bechtel Corporation Court held that the Trial Court erred in denying the defendant’s motion for directed verdict where there was insufficient evidence that the defendant exercised possession and control of the premises required to satisfy a premises liability claim. The Bechtel Corporation Court agreed that where more than one person is under a duty to maintain the premises, liability is predicated upon the person who has control of egress and ingress and not ownership of the property. Given that no witnesses testified that the defendant had controlled the property, the Trial Court should have granted a directed verdict.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 22, 2018

Wallace v. Keldie – (1st DCA)

The Court held that the Trial Court did not abuse its discretion by dismissing a personal injury suit for fraud upon the court where the plaintiff fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during deposition. According to medical records, seven months prior to the accident at issue, the plaintiff slipped and fell off a stepladder resulting in pain radiating into his left leg. Additionally, a medical records from an emergency room visit 9 days after the accident at issue reflected that the plaintiff stated that his back pain began a long time ago and it was made worse by the first accident. The court did not accept the plaintiff’s explanation that a poor memory caused his memory loss or that his testimony was influenced by heavy drinking or medications.