Case Law

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.

La Cava & Jacobson, P.A.

Proposals for Settlement

The Florida Supreme Court on April 1, 2010, in the case of Attorney’s Title Insurance Fund, Inc. v. Joseph Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010), held that joint offers of settlement that were conditioned on the mutual acceptance of both property owners were invalid and unenforceable for purposes of imposing attorney’s fees pursuant to the Offer of Judgment Statute. The Florida Supreme Court held that joint offers conditioned on the mutual acceptance of all joint offerees were invalid and unenforceable because they were conditioned such that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.