Mark Messerschmidt Was Successful In Removing False Contentions From a Website

Mark MesserschmidtMark Messerschmidt was successful in convincing a website to remove false allegations about a healthcare professional and that provider’s care and treatment. Originally, the website falsely claimed this provider’s involvement was substandard according to publicly available information. Mr. Messerschmidt, however, argued that the same public information would directly contradict the publisher’s contentions and demonstrated how the claims against that provider were false in fact. Accordingly, Mr. Messerschmidt’s argument left the publisher without a reasonable option but to remove the false information and print a correction and retraction.

Defense Verdict

Tom Saieva and Lesley Stine Obtain a Final Summary Judgment in Pinellas County

Lesley A. StineThomas Saieva

Tom Saieva and Lesley Stine were successful in obtaining a Final Summary judgment in Pinellas County based on plaintiffs’ failure to comply with pre-suit requirements of Chapter 766, Florida Statutes, in a stroke case against a hospital. Plaintiffs’ pre-suit affidavit against the hospital for the alleged actions of a claimed registered nurse was supported by a neurologist from California with extensive stroke center credentials. This was challenged during presuit and thereafter during the lawsuit on the grounds that, pursuant to Section 766.102(6), claims against nurses, nurse practitioners, certified registered nurse anesthetists, physician assistants, or other medical support staff, could only be supported by similar health care providers, or physicians, licensed under Chapter 458 or 459 (Florida physicians), who had knowledge of the standard of care of those nurses, thus the out of state neurologist’s affidavit was insufficient.

The case was appealed twice. The initial motion for a determination of failure to comply with presuit was denied and appealed. The opinion in PP Transition, LP v Munson, 232 So. 3d 515 (Fla. 2d DCA 2017) was significant because it held that the trial court denied procedural safeguards when it summarily denied the hospital’s motion without express findings as to compliance.

Ultimately, the trial court granted a Final Summary Judgment on the basis of §766.102(6). This case involved the statute relating to expert witness certificates under §458.3175. Plaintiffs claimed that the expert certificate allowed the out of state witness to provide an affidavit against nurses, however the defense pointed out that the expert witness certificate only allowed an out of state physician to testify on the standard of care of a physician licensed under Chapter 458 or 459, rather than a nurse or other allied health professional.

The Final Summary Judgment was appealed to the Second District Court, which affirmed Per Curium in Munson v PP Transition, LP, 2021 WL 6055701.

Second District Court of Appeal Florida

Jason Azzarone Was Successful in Arguing to The Second District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not abuse its discretion in dismissing the Plaintiffs claims for emotional distress damages in an action where Mr. Azzarone represented a community association. As alleged, a security officer for the community association negligently discharged his firearm, wounding the Plaintiffs’ pet. Mr. Azzarone moved to dismiss the Complaint to the extent that it asserted entitlement to emotional distress damages. The Trial Court agreed, dismissing only the claims for emotional distress damages claims with prejudice. Other property damage and general negligence claims remained. Plaintiffs requested that the Trial Court dismiss all remaining claims with prejudice so that the matter could be reviewed by the Second District Court of Appeal. The Trial Court did so, and on appeal, the Plaintiffs raised many arguments for reversal. In addition to arguing that emotional distress damages were awardable in the context of the facts as alleged, the Plaintiffs also argued that if the Second District Court of Appeal agreed that the Trial Court’s ruling was correct, the matter should be remanded so that the other claims could be litigated. The Second District Court of Appeal entered a Per Curiam Affirmance.

Lou La Cava and David Young Obtain a Defense Verdict In a Wrongful Death Case

David P. YoungLouis J. La Cava

Lou La Cava and David Young obtained a defense verdict for a physician assistant and emergency medicine physician in a wrongful death case in Manatee County. The Plaintiff alleged the physician assistant was negligent for not diagnosing meningitis in a 20 year old who presented with headache, fever, nausea and body aches. A diagnosis of viral syndrome was made and the patent was discharged home. The next day the patient was found unresponsive and he passed away a day later. Final diagnosis on autopsy was sepsis and meningitis. There was no testing performed in the emergency room. The physician was not consulted during the patient’s emergency room visit but later reviewed the record and agreed with the plan of care. The defense argued that an appropriate history and physical was performed in the emergency room which did not demonstrate meningitis. Further, the patient did have a viral illness while in the emergency room and he developed the bacterial infection after he left. After a 9 day case and just less than 4 hours of deliberation the jury returned a verdict finding both health care providers not negligent.

First District Court of Appeal Florida

Jason Azzarone Was Successful in Arguing to The First District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the First District Court of Appeal that the Trial Court was correct in dismissing the Plaintiff’s Complaint in a medical malpractice action brought against a hospital for the actions of its nursing staff. Mr. Azzarone argued that the Trial Court’s dismissal was proper because the Plaintiff’s pre-suit expert, and out of state physician, was statutorily unqualified to render opinions regarding the actions of the nurses. As the Plaintiff was time barred from curing this defect, the matter was dismissed with prejudice. The First District Court of Appeal entered a Per Curium Affirmance.

Mandy Smith, Frank Roberts, Jay Azzarone, and Lou La Cava Obtain Summary Judgment Win in Medical Malpractice Case

Amanda Smith, Frank Roberts, Jason Azzarone, and Lou La CavaAmanda Smith, Frank Roberts, Jason Azzarone, and Lou La Cava were successful in obtaining summary judgment in Lee County based on Plaintiff’s failure to comply with multiple provisions of Chapter 766, Florida Statues, governing the medical malpractice pre-suit screening requirements. Specifically, the Defendant argued that Plaintiff failed to serve a Notice of Intent to Initiate Litigation for Medical Negligence (“NOI”) in accordance with F.S. 766.106(2)(a) and F.R.C.P. 1.650 and failed to provide evidence that the Plaintiff and/or his attorneys conducted a good faith investigation pursuant to F.S. 766.104 and provide Defendants, their attorneys, and/or insurers, with a verified written medical expert opinion from a qualified medical expert in accordance with F.S. 766.102, 766.202, and 766.203.

The Defendant further argued that Plaintiff had ample notice of the pre-suit deficiency with time to cure said deficiency, but did not do so. The Court found that neither the Defendant doctor, nor her employer were put on notice of the potential claim, nor were they named in the NOI that was sent to the co-defendant hospital. The court acknowledged the imputed notice arguments made by Plaintiff and cited in the Young v. Naples Community Hospital Inc., 129 So. 3d 456, 459–60 (Fla. 2d DCA 2014), but relied upon two cases cited by the Defendant, Bonati v. Allen (911 So2d 285, (2005)) and Brundage v. Evans (295 So.3d 300 (2020)), which illustrated that, pre-suit investigation requirements under Florida Statute section 766.203 demanded some specificity towards potential defendants in pre-suit, and a valid notice alone without corroboration does not suffice to meet pre-suit requirements.

Defense Verdict

Lou La Cava and Janett Durkee Obtain A Defense Verdict In A Wrongful Death Case

Janet DurkeeLouis J. La CavaLou La Cava and Janet Durkee obtained a defense verdict for a hospitalist in a wrongful death case in Hillsborough County. The Plaintiff was a 62 year old female who fell down a flight of stairs and broke 5 ribs. She was intoxicated. She was evaluated in the emergency room and admitted to the hospital for observation. She was evaluated by the hospitalist in the morning and appeared stable. During the day she complained of pain, nausea and in the evening anxiety. Her blood pressure started getting lower. In the early morning hours she was found non responsive and she was unable to be resuscitated. On autopsy she was found to have additional rib fractures, a lacerated intercostal vessel and 2,000 ccs of blood in her right pleural space. Plaintiff alleged the hospitalist was negligent by not consulting a surgeon, failing to perform coagulation studies, failing to perform serial x-rays, failing to order a chest CT and failing to see the patient again during the day based on her complaints of pain, nausea and anxiety. After a 8 day trial the jury returned a verdict finding that the hospitalist defendant was not negligent and did not cause the decedent’s death.

Second District Court of Appeal Florida

Jason Azzarone was successful in arguing to the Second District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not err in denying the Plaintiff’s Renewed Motion to Disqualify the successor Judge assigned to the case. The Plaintiff filed a Renewed Motion to Disqualify following a hearing addressing the Defendants’ Motion to Dismiss. Despite being successful in defeating the Motion to Dismiss, the Renewed Motion to Disqualify was filed, arguing that comments made by the Judge during oral argument were improper, demonstrated bias towards the defense and supported the Plaintiffs’ belief that she would not receive a fair trial. Following the denial of the Renewed Motion to Disqualify, the Plaintiff filed a Petition for Writ of Prohibition with the Second District Court of Appeal, arguing that the denial was erroneous because the Judge’s comments were improper. In opposition, Mr. Azzarone argued that the comments were in no way inappropriate. Mr. Azzarone further argued that the Plaintiff failed to satisfy her burden of establishing error considering that the Plaintiff was attempting to disqualify a successor Judge. The Second District Court of Appeal agreed, denying the Petition for Writ of Prohibition.

Medical Malpractice Case

Jonathon Lynn and Mandy Smith Obtain Defense Verdict in Collier County

Jonathon P. Lynn

Jonathon Lynn and Mandy Smith obtained a defense verdict after a six-day trial in Collier County. The Plaintiff, who had undergone a colonoscopy, vomited and aspirated immediately after his procedure while under the care of the CRNA and anesthesiologist. The Plaintiff alleged negligence on the part of both the CRNA and anesthesiologist in not preventing the aspiration. As a result of the aspiration, the patient was diagnosed with dysautonomia, a rare complication, and sought treatment from his Harvard–affiliated pulmonologist who testified at the time of trial. The pulmonologist had developed a life care plan for the Plaintiff that was expected to cost about $3,500,000.00 over the Plaintiff’s remaining life expectancy. In his closing argument, the Plaintiff asked the jury to award $4,000,000.00 in non-economic damages in addition to the economic damages. The jury deliberated 3 1/2 hours and returned a verdict for the Defendants finding they were not negligent in their care and treatment of the Plaintiff.

Fifth District Court of Appeal Florida

Jason Azzarone was successful in arguing to the Fifth District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the Fifth District Court of Appeal that the Trial Court did not err in denying the Plaintiff’s Motions for Directed Verdict, Motion for Additur and Motion for New Trial in Santiago v. Osceola Regional Hospital, Inc., a premises liability case involving a hospital. The jury found for the Plaintiff, awarding a substantial amount for damages, and apportioned twenty percent of the fault to the hospital. At trial, the Plaintiff argued that no evidence was presented to establish that the Plaintiff was responsible for the slip and fall incident. The Trial Court denied this Motion. In his post-trial Motions, the Plaintiff argued that the amount awarded by the jury was far below the amounts requested (as supported by the evidence). The Plaintiff’s Motion for New Trial argued that the verdict was against the manifest weight of the evidence. Both of these Motions were denied. On appeal, Mr. Azzarone argued that conflicting evidence was presented to the jury regarding the Plaintiff’s ability to avoid the fall. Mr. Azzarone further argued that conflicting evidence was presented as to the Plaintiff’s injuries and the amounts associated with the alleged injuries. In summary, Mr. Azzarone argued that the Plaintiff’s dissatisfaction with the jury’s decision could not support his arguments for requiring a new trial. The Fifth District Court of Appeal agreed and entered a Per Curium Affirmance.