Case Law

La Cava & Jacobson, P.A.

From May 24, 2013 edition of Florida Law Weekly

Southern Baptist Hospital of Florida Inc. v. Johnston (4th DCA): This case, in a concurring opinion, discusses the pros and cons of Florida’s birth related Neurological Injury Compensation Association statute, such as why hospitals seek NICA coverage versus why Plaintiffs generally do not want claim to be covered by NICA. While the opinion is mainly dicta, it provides insight into some of the problems with the NICA statute. The opinion also talks about the difficulties in proving whether the mental impairments in child were permanent and substantial given the child’s age. In reading the opinion, it appears that the administrative law judge found that the injury was covered by NICA.

Miccosukee Tribe of Indians v. Dexter Wayne Lehtinen (3d DCA): Trial Court properly denied Plaintiff’s motion to disqualify Defendant’s attorney on the basis that the attorney would gain an unfair informational advantage against it due to the fact that he represented other parties in litigation against Plaintiff in other unrelated matters. The Court noted that disqualifying a party’s attorney is an extraordinary remedy which the Court should use sparingly. When considering a motion to disqualify counsel, the Court must consider the competing interests of maintaining professional standards and preserving the client confidences on the one hand, and permitting a party hire the counsel of their choice on the other. Part of the Court’s denial of the petition was due to the fact that the matters were not related.

La Cava & Jacobson, P.A.

Medical Malpractice

Caps on Non-Economic Damages

In September 2003, the Florida Legislature enacted Florida Statute § 766.118, placing caps on non-economic damages in medical malpractice cases. In cases against practitioners involving death, catastrophic injury, or where the court determines manifest injustice would result, the non-economic damages are capped at $1,000,000.00. In all other cases against practitioners, the cap is $500,000.00. In actions involving non-practitioners, such as hospitals, the caps for the above categories are $1,500,000.00 and $750,000.00, respectively. Theses caps apply regardless of the number of defendants involved. The statute also caps non-economic damages in cases involving emergency room practitioners at $150,000.00 per practitioner and a total of $300,000.00 for all defendants if certain criteria are met.

Since the statute’s passage, it has been the subject of constitutional challenges. Most recently, in March 2010, the Third District Court of Appeal in Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010) upheld the retroactive application of the statute to limit non-economic damages in cases accruing prior to 2003. Previously, in 2009, the Fourth District Court of Appeal in Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009) reached the opposite conclusion, reasoning that the statute was an impairment of a substantive and vested right of the Plaintiff that existed prior to the enactment of the statute. The losing parties in both Weingrad and Raphael have sought review by the Florida Supreme Court.

The Florida Supreme Court has not yet ruled on the retroactive application issue or on the ultimate question of whether the limitations on non-economic damages are constitutional. The Court’s last significant ruling on the constitutionality issue was in 1993 in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), where the Court upheld separate statutory caps on non-economic damages in medical malpractice arbitrations. Recently, in 2009, the United States District Court for the Northern District of Florida, in Estate of McCall v. U. S., 663 F. Supp. 2d 1276 (N.D. Fla. 2009), interpreted Florida state law and rejected all constitutional challenges to the application of the caps. In doing so, the federal court recognized that the final decision on the issue would need to be made by the Florida Supreme Court. Conversely, in 2007, in Cavanaugh v. Cardiology Associates, 06-CA-3814 (9th Circuit Orange County Oct. 30, 2007), an Orange County Circuit Judge found that the caps violated the guarantee in Article I, Section 26(a) of the Florida Constitution of the right to “all of the damages that a jury could potentially award.”

Clearly, whether through an appeal of Raphael, or Weingrad, or some other mechanism, the Florida Supreme Court will likely address the constitutional challenges to the non-economic damages caps under §766.118. Until that time, this remains an open question in Florida.

La Cava & Jacobson, P.A.

Amendment 7

Patient’s Right to Know About Adverse Medical Incidents

On November 2, 2004, Florida voters passed Constitutional Amendment 7, also known as the “Patient’s Right to Know About Adverse Medical Incidents” Amendment. Thereafter, the Florida legislature attempted to apply guidelines and restrictions to Amendment 7 via Florida Statute §381.028. In Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008), the constitutionality of Florida Statute §381.028 was challenged, with the Florida Supreme Court holding that Amendment 7 was self-executing and that the terms were enforceable as of the date of passage. Importantly, the Florida Supreme Court held that Amendment 7 did not violate the hospitals’ due process rights and that several provisions in Florida Statute §381.028 violated Amendment 7.

Thereafter, courts have been called upon to interpret the scope of Amendment 7. In Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009), the court held that the disclosure of adverse incident reports did not impair contracts between hospitals and doctors, which generally provide for confidentiality of peer review proceedings. In Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007), the court defined “patients” to include active, prospective and previous patients, thus allowing broader discovery of adverse medical incidents. In Benjamin v. Tandem Healthcare, Inc., 998 So. 2d 566 (Fla. 2008), the Florida Supreme Court held that a plaintiff did not have the right to obtain adverse medical incident reports from a nursing home. Finally, in West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009), the court held that effective peer review is not hampered by Amendment 7, and that Amendment 7 was not preempted by federal law.

In some instances, however, the discovery of information is not permitted. For example, courts have upheld statutory protection of information contained in a physicians’ credentialing or re-credentialing file. See West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009); Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007). The Morton Plant court also held that the disclosure of general policies and procedures for peer review or risk management committees that do not contain adverse medical incident information was not permitted. Finally, if an attorney’s opinions and/or theories of defense are contained within materials, courts have held that the work product doctrine may prevent disclosure. Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009). Importantly, attorney participation without more will not prevent disclosure. Courts have held that where an attorney does not provide opinions or theories, he is serving as a conduit of factual information which could have been obtained without his involvement. Thus, obtaining an attorney’s opinions and theories at the initial stages of the process is imperative to lay the groundwork for utilizing the protections of the work product doctrine.

La Cava & Jacobson, P.A.

Rebuttable Presumption of Negligence

Auto Accidents

In general, there is a rebuttable presumption of negligence on the part of a rear driver in rear end collision cases. The burden rests on the rear driver to present evidence that “fairly and reasonably tends to show” that the presumption of negligence was misplaced. The presumption dissipates once evidence of the same is presented and the case then must go to the jury to hear further evidence, reconcile conflicts and evaluate the credibility of witnesses. Examples that have rebutted the presumption of negligence include: abrupt arbitrary stops in places where it could not reasonably be expected or unexpected change of lanes; mechanical failures which caused the rear driver to collide with the lead driver; and instances where the lead vehicle is illegally and therefore unexpectedly stopped.

La Cava & Jacobson, P.A.

New Florida Slip and Fall Statute effective July 1, 2010

One of the most useful defenses in premises liability cases is the defendant’s lack of notice of the allegedly dangerous condition. The Florida Legislature has favorably shifted the standard of proof in slip and fall cases in a statute that becomes effective July 1, 2010, under Florida Statute §768.0755. It will read:
Premises liability for transitory foreign substances in a business establishment

  1. If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
    1. The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
    2. The condition occurred with regularity and was therefore foreseeable.
  2. This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

If a plaintiff is unable to establish the defendant had actual or constructive knowledge of the transitory foreign substance under the statute, plaintiff’s case should fail. Business owners will hopefully save time and expense in defending claims where the business owner had no actual or constructive knowledge of the alleged dangerous condition.