FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 1
CASES FROM THE WEEK OF JAN. 3, 2014

A MEDICAID RECIPIENT SHOULD BE AFFORDED THE OPPORTUNITY TO SEEK THE REDUCTION OF A MEDICAID LIEN AMOUNT, BY DEMONSTRATING WITH EVIDENCE THAT THE LIEN AMOUNT ESTABLISHED BY §409.910(11)(f) EXCEEDS THE AMOUNT RECOVERED FOR MEDICAL EXPENSESDavis v. Roberts, 39 Fla. L. Weekly D1 (Fla. 5th DCA December 20, 2013):

The trial court determined pursuant to the formula set forth in §409.910, that AHCA was entitled to recover the full amount of its Medicaid lien out of the proceeds a minor child received from a personal injury settlement, even though the parties agreed that approximately 90% comparative fault would be alleged against her mother who was driving.

The court held that the formula in that section should be used when there is no allocation of the settlement agreement, and there is no evidence proffered at the hearing from which a trial judge can determine how much of the damages represented medical expenses. In other words, absent proof of an allocation in the settlement agreement, §409.910(11)(f) “must be” used to calculate the amount owed to AHCA.

This does not mean that it is a mandatory statute, however. Because that section is preempted by the federal Medicaid statute’s anti-lien provision, to the extent that it creates an irrebuttable presumption, the statute still permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for medical expenses, in the event evidence is presented. Thus, a Medicaid recipient should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating with evidence that the lien amount established by the section, exceeds the amount recovered for medical expenses.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANTS IN MEDICAL MALPRACTICE CASE BASED ON THE STATUTE OF LIMITATIONS DEFENSE

Baxter v. Northrup, 39 Fla. L. Weekly D4 (Fla. 5th DCA December 20, 2013):

The defendant doctor performed hip replacement surgery on the plaintiff on November 2, 2004. The next day, the plaintiff noticed his leg was numb, and he had a foot drop. The doctor told him that those symptoms would abate after a period of physical therapy. Based on those assurances, the plaintiff continued treatment with that doctor. When his symptoms did not improve, on April 6, 2005, the plaintiffs saw a neurologist who advised that the deficit was likely permanent. Plaintiff filed a notice of intent on June 25, 2007.

The trial court granted summary judgment based on the statute of limitations. The Fifth District reversed. It found that it could not conclude as a matter of law that the plaintiff’s post-surgical symptoms were such that medical malpractice was a “reasonable possibility” a mere day after the surgery. The doctor himself testified that foot drop is a known complication of hip replacement surgery and an appreciable percentage of foot drop symptoms occurring after hip replacement cannot be assigned to a cause.

Because the plaintiff was an ordinary person, unschooled in medicine and left to figure out the malpractice for himself, the jury had to decide about when he should have been on notice of the injury.

The court also reminded us that under Rule 1.650(d)(1), the tolling period commences when the notice is served.

NEW TRIAL REQUIRED WHEN TRIAL JUDGE ADMITTED IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A DRIVER’S DRUG USE DURING THE COMPENSATORY DAMAGES PHASE OF THE TRIAL, AFTER THE DEFENDANT ADMITTED HE WAS THE SOLE CAUSE OF THE ACCIDENT, THAT HE ACTED WITH GROSS NEGLIGENCE, AND THAT HE WAS LIABLE FOR BOTH COMPENSATORY AND PUNITIVE DAMAGES

Swanson v. Robles, 39 Fla. L. Weekly D13 (Fla. 2nd DCA December 25, 2013):

The defendant was driving his truck when he ran into a vehicle owned by the City of Tampa that was parked in the striped median area of the road. The City employee standing at the rear of the city vehicle and unloading traffic counters was struck and killed immediately. Shortly before trial, the defendant admitted (a) he was negligent, (b) he was the proximate cause of the collision, (c) he had acted with gross negligence, and (d) he conceded plaintiff was entitled to punitive damages.

The trial court ruled that the evidence of the defendant’s drug use was admissible during the compensatory phase of the trial, based on the plaintiff’s argument that evidence of the drug use was relevant to prove the plaintiff’s compensatory damages, because knowing that he had engaged in such conduct and had gone unpunished served to increase her pain and suffering.

The court reversed for a new trial. It reasoned that when a defendant admits liability in an automobile negligence case, and the only remaining issue is the amount of compensatory damages, evidence regarding the defendant’s sobriety should not be admitted into evidence. When a defendant admits the entire responsibility for an accident, evidence regarding liability is irrelevant and prejudicial.

Clearly, after the defendant admitted his negligence, the evidence of his drug use was highly prejudicial and could only serve to inflame the jury against him. Thus, the court reversed and ordered a new trial.

ERROR TO DENY UM INSURER’S MOTION FOR DIRECTED VERDICT ON PLAINTIFF’S CLAIM THAT REPRESENTATIVE MISINFORMED PLAINTIFF OF UM BENEFITS IN EXCHANGE FOR SIGNING A RELEASE, WHERE PLAINTIFF FAILED TO PROVE THAT SHE SUSTAINED ANY DAMAGES OR DETRIMENT AS A RESULT OF THE ALLEGED MISREPRESENTATIONS

GEICO General Insurance Co. v. Hoy, 39 Fla. L. Weekly D17 (Fla. 2nd DCA December 20, 2013):

The GEICO insured was involved in an accident and sustained serious injuries. Upon her discharge from the hospital, she owed $39,000 for her medical expenses. The hospital filed a claim of lien, and the evidence showed that it pursued its liens relentlessly. The lien stated the hospital was entitled to be paid in full before the victim received a dime.

The victim had $10,000 in PIP benefits and $10,000 in UM. GEICO paid the hospital $10,000 in PIP benefits leaving a balance. GEICO then decided to tender the $10,000 in UM benefits. GEICO’s field adjuster met with the insureds at their house, and the insureds signed a release and received a check for the benefits. The victims were unable to cash or deposit the check because the hospital was named on it as one of the payees. Later, the hospital indicated that it would agree to accept $5,000 of the $10,000 in UM benefits, to permit the plaintiffs to have the remaining $5,000 and to satisfy its claim of lien in full.

The plaintiffs sued GEICO for breach of contract, bad faith, fraud in the inducement, and rescission and release. The case went to trial on the fraud in the inducement claim, and the jury awarded the plaintiffs the $5,000 balance. The trial court had denied GEICO’s motion for directed verdict, where GEICO argued that the plaintiff had not presented any evidence that she sustained injury as a result of her “detriment” from the false representations.

The court reversed. It agreed that the failure to establish the damages element of her claim for fraudulent inducement required a directed verdict. Having failed to prove that she sustained any pecuniary damage or detriment as a result of the alleged misrepresentations meant that the plaintiffs’ position with regard to the UM benefits was no worse than it would have been had there been no misrepresentation. Thus, the court reversed for final judgment for GEICO.

OFFER OF JUDGMENT STATUTE DOES NOT APPLY TO CASES INVOLVING GENERAL OFFER SEEKING RELEASE OF ALL CLAIMS, BOTH EQUITABLE AND MONETARY

Bull Motors v. Borders, 39 Fla. L. Weekly D28 (Fla. 3rd DCA December 26, 2013).

NO ERROR IN REFUSING TO DENY MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

General Computer Services v. AP SC River Oaks, 39 Fla. L. Weekly D33 (Fla. 3rd DCA December 6, 2013):Not only was the default entered by the clerk not void, the court concluded there was no abuse of discretion in the trial court’s findings that defendant failed to demonstrate excusable neglect or due diligence in seeking relief under Rule 1.540.

Please feel free to contact me with any questions about appellate issues you may have.