THE WEEK IN TORTS

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FLORIDA LAW WEEKLY

VOLUME 39, NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 19, 2014

IN A CASE WHERE A PERSON ADMITTED TO THE HOSPITAL DUE TO COMPLICATIONS RELATED TO COPD DIED AS A RESULT OF BEING DROPPED ACCIDENTALLY ONTO AN X-RAY TABLE WHILE BEING MOVED FROM THE GURNEY, THE TRIAL COURT PROPERLY DISMISSED THE COMPLAINT FOR FAILURE TO COMPLY WITH MEDICAL MALPRACTICE PRE-SUIT REQUIREMENTS BECAUSE THE CASE WAS FOR MEDICAL NEGLIGENCE AND NOT SIMPLE NEGLIGENCE.

Buck v. Columbia Hospital Corp., 39 Fla. Weekly D1921 (Fla. 4th DCA September 10, 2014):

A woman with COPD was admitted to the hospital. Two days later she was scheduled to have x-rays and was transported from her room to the radiology floor. Prior to the x-rays being taken, the transport techs moved the patient from the transport gurney and lifted her onto the x-ray table. In the course of moving her, they accidentally dropped her onto the hard x-ray table surface causing her to sustain a fracture of her lumbar spine which ultimately resulted in her death.

The plaintiff sued based on simple negligence. The hospital moved to dismiss the complaint alleging that the plaintiff should have pre-suited the case because it arose out of medical negligence.

The Fourth District reminded us that §766.106 defines “a claim for medical negligence or a claim for medical malpractice as a claim arising out of the rendering of, or the failure to render, medical care or services.” The court concluded that because this wrongful act was directly related to the improper application of medical services, and the use of professional judgment or skill, that it arose out of medical negligence. Because the decedent was in the hospital being treated for COPD, and was transported from her gurney to an x-ray table during the course of her treatment, the court said it involved medical “care.” The court cited to a prior decision where it held that an injury caused by an orderly was still “medical,” and quoted Judge Mays’ concurring opinion in that case that once a medical procedure has begun, whatever happens during the procedure should be subject to the requirements for filing a medical negligence action.

The court tried to distinguish other cases arising out of “ordinary” negligence (for example, a case where medical treatment had not yet begun when the plaintiff was hit in the head with a dental x-ray machine, or when a patient was injured, because a hospital employee attempting to return the patient’s chair to an upright position by kicking the footrest, and inadvertently kicked the patient).

The lesson here is that very few medical cases that arise in a “medical setting” will be able to escape from pre-suit.

ONCE THE APPELLATE COURT HAS AWARDED ATTORNEYS’ FEES, PURSUANT TO A PROPOSAL FOR SETTLEMENT, THE ISSUE OF GOOD FAITH CANNOT BE RAISED FOR THE FIRST TIME AT THE HEARING TO FIX THE AMOUNT OF THOSE FEES.

Arce v. Wackenhut Corp., 39 Fla. Law Weekly D1932 (Fla. 3rd DCA September 10, 2014):

The trial court had awarded defendant an entitlement to attorneys’ fees which the appellate court upheld. The appellate court then ordered the trial court to fix the amount of those fees on remand.

On remand, the trial court entertained plaintiff’s argument that the proposal for settlement was not made in good faith. It then vacated its earlier order, and refused to award fees.

On the second appeal, the Third District held that once the appellate court affirms the entitlement to fees, it’s error for the trial court to consider good faith during the hearing held to fix the amount of those fees.

TRIAL COURT PROPERLY FOUND THAT THE INSURER SHOULD BE HELD RESPONSIBLE FOR A SANCTIONS JUDGMENT ENTERED AGAINST THE INSURED FOR MISREPRESENTATIONS MADE DURING DISCOVERY–SANCTIONS JUDGMENT CONSTITUTED A COST CHARGED TO THE INSURED IN A COVERED LAWSUIT

Geico General v. Rodriguez, 39 Fla. Weekly D1937 (Fla. 3rd DCA September 10, 2014):

The defendant insured driver lied about his own physical condition during his deposition, and testified that he had no physical impairments that would prevent him from being a safe driver or would affect his vision. Records later revealed that he was legally blind. The plaintiffs filed a motion for sanctions against the insured (this was after Geico had already tendered the policy limits on the case but refused to pay certain medical liens). Geico still maintained that it was not responsible for the sanctions pursuant to its policy.

The Third District disagreed. It held that the policy issue covered the accident, and while the insured’s misrepresentations in his deposition constituted sanctionable conduct, they were not the type of material misrepresentations “relating to insurance” that would implicate the “Fraud and Misrepresentation” provision of the Geico policy. Therefore, Geico could not void the policy based on those misrepresentations. The court affirmed the trial court’s decision granting summary judgment determining that Geico was responsible for payment of the sanctions judgment.

ERROR TO DISMISS CASE AGAINST INSURER’S AGENT FOR MAKING FALSE STATEMENTS ABOUT THE EXTENT OF THE INSURED’S COVERAGE WITH PREJUDICE.

Gallon v. Geico, 39 Fla. Law Weekly D1965 (Fla. 2nd DCA September 12, 2014):

Plaintiff was the back seat passenger in his mother’s car when she was involved in a single car accident. He was ejected and severely injured. The plaintiff’s mother carried insurance with Geico, which included UM coverage.

A dispute arose as to the amount of UM benefits available, with the plaintiff asserting the coverage should have been stacked. Plaintiff asserted a claim for negligent misrepresentation against the agent, alleging that after his mother’s coverage had lapsed, Geico reissued the policy with a significantly higher premium. Her review of the declarations page showed that Geico had reissued the policy with stacked UM coverage.

Unsure of what the coverage was, the insured stated she called Geico and spoke to one of its agents. Plaintiff asserted that she made the call to decide whether she wanted to continue paying for the coverage or decline it, and represented that the Geico agent told her that paying for the stacked coverage would mean that in the event either of her sons were injured, Geico would pay double the stated amount of the policy because she had two vehicles. Despite this reliance and the payment of premiums, Geico still denied the benefits of the stacked UM.

In this case, which came to the court on a motion to dismiss, the court found that plaintiff had stated a cause of action for negligent misrepresentation. It was error for the trial court to dismiss the complaint.

IT WAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO DISQUALIFY THE PLAINTIFF’S ATTORNEY ON THE GROUND THAT THE ATTORNEY HAD REPRESENTED THE DEFENDANT IN AN EARLIER LAWSUIT IN WHICH BOTH PLAINTIFF AND DEFENDANT HAD BEEN SUED BY A THIRD-PARTY–DEFENDANT FAILED TO DEMONSTRATE THAT THE MATTER IN THE CURRENT SUIT WAS THE “SAME OR SUBSTANTIALLY RELATED” TO THE MATTER IN THE PRIOR SUIT WHERE THE ATTORNEY REPRESENTED THE DEFENDANT.

Galaxy Fireworks v. Kozar, Fla. Law Weekly D1967 (Fla. 2nd DCA September 12, 2014):

To disqualify an opposing attorney, a former client must first demonstrate that he or she had an attorney-client relationship with that lawyer, and if that is established, an irrefutable presumption arises that confidences were disclosed in the relationship. In this case, the circuit court correctly found that the client had shown that he and the attorney did have such a relationship.

However, there is a second burden. The client must demonstrate that the matter in which the attorney is now adverse to him is the “same or substantially related to” the matter in which the attorney previously represented him. Evidence of the relationship between the matters might include pleadings or other documents from an earlier case.

Here, the evidence did not show how the matters involved in the breach of contract case were related to the matters involved in an earlier injunction, tenant eviction case. Because the client failed to meet the second prong of disqualification, the attorney should not have been disqualified.