Jason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not abuse its discretion in dismissing a medical malpractice action with prejudice in Athey v. Tampa Bay Pulmonary Assoc., P.A., et. al., based upon the Plaintiff’s failure to file a complaint that stated a cause of action. The Trial Court granted the Defendants’ motion to dismiss based on the Plaintiff’s failure to state a cause of action despite being given multiple opportunities to file a proper complaint. The Second District Court of Appeal entered a Per Curium Affirmance.
Jason Azzarone was successful in arguing to the Fifth District Court of Appeal that the Trial Court did not err in dismissing a medical malpractice action in Shultz v. Citrus Memorial Hospital, Inc., based upon the Plaintiff’s failure to comply with Florida’s medical malpractice pre-suit requirements. The Trial Court granted a motion to dismiss with prejudice based on the failure to provide any responses to pre-suit discovery. On appeal, the Appellant argued that the dismissal was erroneously entered because the defendants failed to demonstrate that they were prejudiced by the failure. Mr. Azzarone argued that the Trial Court’s decision was proper based upon the express finding that the Defendant was prejudiced. Additionally, Mr. Azzarone argued that the Appellant gave no reasonable explanation for the failure to respond to the discovery requests. The Fifth District Court of Appeal entered a Per Curium Affirmance.
Jason Azzarone and Barbara Chapman were successful in securing a summary judgment in a civil rights case filed by an inmate in the United States District Court, Middle District of Florida, in which the firm represented a physician who provided medical care to Hillsborough County inmates. The Plaintiff alleged that he was denied medical care and that the physician neglected his condition in violation of his Eighth Amendment Rights. The motion filed argued that based on the medical records, the Plaintiff could not establish deliberate indifference to a serious medical condition as required by Federal law. The Court agreed, finding that the Plaintiff could not demonstrate deliberate indifference and therefore, there were no genuine issues of material fact to present to the jury.
Jason Azzarone was successful in arguing to the Fifth District Court of Appeal that the Trial Court did not commit error in denying the Plaintiff’s motion for new trial in a medical malpractice action. The Appellant’s position on appeal was that the Trial Court erred in denying the motion for new trial based upon improper closing arguments by counsel. Mr. Azzarone successfully argued that the jury’s verdict must be affirmed as there was no showing made on appeal that the Trial Court abused its discretion in denying the motion for new trial based upon the failure to satisfy the standard set forth in Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000).
Jason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not err in dismissing a case with prejudice in a claim filed by an inmate in Hillsborough County, in which the firm represented a medical group which provided medical care to Hillsborough County inmates. The Plaintiff alleged that he was denied medical care. A motion to dismiss was filed, arguing that the Plaintiff failed to satisfy the condition precedent of notifying the Florida Department of Insurance of the filing of a civil action, failed to satisfy Florida’s medical malpractice pre-suit screening requirements and failed to comply with Florida law regarding the filing of a lawsuit by an indigent prisoner. The Trial Court agreed, and further sanctioned the Plaintiff, holding that he could not file any further actions in Hillsborough County without an attorney. The Plaintiff attempted to move for rehearing, but was untimely in doing so. On appeal, the Second District agreed that the Plaintiff’s motions were untimely.
In November 2019 Kari Jacobson and Kevin Houston tried a premises liability case for a hospital located in Charlotte County (Punta Gorda) Florida. During trial, the Plaintiff alleged that Defendant hospital was negligent for failing to maintain portions of its roof in a reasonably safe condition; failing to warn Plaintiff about a known dangerous condition that existed on the roof; and failing to correct and/or repair the known dangerous condition causing Plaintiff’s accident and fall. Following Plaintiff’s case the hospital moved for directed verdict. The judge reserved ruling and allowed the case to proceed to a jury verdict. Jurors found the hospital 10% liable, Plaintiff 50% liable and a nonparty/Fabre defendant 40% liable. Following the verdict Defendant Hospital renewed their motion for directed verdict. On February 3, 2020, after hearing arguments of counsel, the Judge granted the hospital’s motion for directed verdict, vacated the jury’s verdict, and entered judgment in favor of Defendant hospital.
By Arlin Crisco – CVN, Courtroom View Network
Defense attorneys in medical negligence cases must often overcome jurors’ natural tendency to engage in hindsight bias when they consider a doctor’s care. At trial over the communication and treatment surrounding a Florida woman’s ectopic pregnancy, Louis La Cava’s closing on staff expectations and an artful warning on hindsight bias helped clear the doctors that treated her.
Stacey Santangelo-Santana’s’s 2014 ectopic pregnancy — a nonviable pregnancy outside the uterus — led to the loss of one of her fallopian tubes, and left her unable to naturally conceive. Santangelo-Santana sued Exodus Women’s Center and its two treating obstetricians — Drs. Dawn Ericsson and Stephen Wagner— as well as pathologist Dr. Robert Ruffalo, claiming that delays in communicating pathology results led to the loss of her fallopian tube. Ruffalo, she contended, failed to properly contact Ericsson and Wagner regarding the pathology results, while the two obstetricians, she claimed, did not follow up to obtain the results.
Lou La Cava, Piper Hurley and Jim Wetzel obtained a defense verdict for two Obstetrician/Gynecologists and their practice groups in a medical malpractice case tried in Hillsborough County. The Plaintiff alleged she had to have her only fallopian tube removed due to a delay in diagnosis of an ectopic pregnancy. Plaintiff’s claimed that both defendants failed to follow up on a pathology report after a Dilatation and Curettage. The pathology report showed that the specimen removed did not contain any chorionic villi and therefore there was a suspicion for an ectopic pregnancy. The ectopic pregnancy ruptured before being diagnosed and therefore the patient could not have a more conservative treatment which would have preserved the tube. The case was defended on both standard of care and causation. The defense position was that while there was a system failure regarding reporting the results of the pathology report it was not caused by the negligence of the physicians. Further, it was argued that the Plaintiff more likely than not would have needed to have her tube removed even if the ectopic pregnancy was diagnosed sooner. After an 8 day trial the jury returned a verdict finding that there was no negligence that was a legal cause of injury to the Plaintiff.
Jon Lynn got a defense verdict in a medical malpractice case after a one week trial in Broward County. The defendant, an orthopedic trauma surgeon, was sued by his former patient who had sustained a comminuted fracture of her left forearm that the doctor treated with a long arm cast. The plaintiff’s expert testified that there was virtually no chance that the fracture would heal without surgery and told the jury that the defendant was negligent because he failed to perform an open reduction and internal fixation within a week or two of the accident. The fracture went on to a non-union and the plaintiff had surgery by another orthopedic surgeon two years later. She claimed damages as a result of the delay in surgery. The jury disagreed and returned a verdict for the doctor.
In October 2019, Lou La Cava and Iva Valtcheva were successful in obtaining a voluntary dismissal with prejudice in a case against a physical therapist in Pasco County. The Plaintiffs alleged that the physical therapist was negligent in her care of the patient when she allegedly left her patient unattended and he suffered a fall, which resulted in an injury to his amputated limb, subsequent infection, revision of the initial amputation, and prolonged hospitalization and recovery thereafter. The defense argued that the incident did not occur as it was described by the Plaintiffs, that the physical therapist did not leave her patient unattended and that she did not breach the standard of care. It was further argued by the defense that the infection and need for the second amputation was not caused by the alleged fall; rather, the injuries claimed were the sequelae of Plaintiff’s long-standing health issues including diabetes and peripheral vascular disease. There were no offers made to settle the matter and the case was prepared for trial. After two years of zealously defending the physical therapy provided, the Plaintiffs voluntarily dismissed the matter with prejudice without any payment made on behalf of the physical therapist or her employer.
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