FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 21

“The Day It Happens……….”

CASES FROM THE WEEK OF MAY 22, 2015

SUPREME COURT DECLARES THAT PLAINTIFF HAS A “VESTED RIGHT” AT THE TIME MEDICAL MALPRACTICE IS COMMITTED FOR RETROACTIVITY PURPOSES.

Miles v. Weingrad, 40 Fla. Law Weekly S279 (Fla. May 21, 2015):

This case involved medical malpractice that occurred prior to the statutory changes made to §766.118(2) in 2003. After a verdict for the plaintiff, the defendant moved to reduce the award of noneconomic damages down to the cap amount.

While the trial court had ruled that to do so would violate the constitution (by retroactively applying a statute to impair a vested right), the Third District reversed, disagreeing with that conclusion. The Third District ruled there was no vested right to a particular damage award, and found that the plaintiff would not suffer a due process violation. The Third District also held, that in order to establish that a right vested before the statute became effective, the plaintiff must have “noticed” his or her intent to bring such an action.

The Fourth District, however, had held differently. In Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009), it had stated that the cause of action for medical malpractice accrues at the time the incident occurs.

As the supreme court explained, its own precedent has long established that a litigant’s substantive invested rights may generally not be infringed upon by the retroactive application of the substantive statute. Even when the legislature doesexpressly state that it should apply retroactively, the supreme court has refused to apply it retroactively if it impairs vested rights, creates new obligations, or imposes new penalties.

In this instance, the court ruled that the date of the malpractice was when the cause of action accrued, and therefore the amendments made to the statute in 2003 did not apply.

SUPREME COURT ADOPTS AMENDMENTS TO THE FLORIDA BAR RULES.

In Re Amendments to Rules Regulating the Florida Bar, 40 Fla. Law Weekly S283 (Fla. May 21, 2015):

There are amendments to approximately 20 Bar rules. Many of the rules include changes for electronic information and service by email. Rule 4-1.18 addresses duties to a prospective client and the comment provides a very detailed explanation of when a person becomes a “prospective client.” There are some additions to the board-certification rule (6-29). Worth a read when needed!

ERROR TO DISMISS ACTION FOR FAILURE TO PROSECUTE, WHERE PLAINTIFF’S COUNSEL FILED AN AFFIDAVIT ASSERTING THAT HE DID NOT RECEIVE THE MOTION TO DISMISS AT LEAST 60 DAYS BEFORE THE TRIAL COURT GRANTED IT.

Hernandez v. GNL Tire Fleet, 40 Fla. Law Weekly D1138 (Fla. 2nd DCA May 15, 2015):

Florida Rule of Civil Procedure 1.420(e) requires after receipt of a notice that there has been no record activity for ten months, a plaintiff has 60 days to engage in record activity to prevent dismissal of the action.

Because plaintiff’s counsel’s affidavit stated that by the time he became aware of the motion to dismiss, the 60 day period had expired, the trial court should not have granted the motion.

WRIT OF PROHIBITION GRANTED WHERE JUDGE REFUSED TO ALLOW FORMER HUSBAND TO CROSS-EXAMINE FORMER WIFE DURING EVIDENTIARY HEARING.

Wyckoff v. Cavanaugh, 40 Fla. Law Weekly D1143 (Fla. 1st DCA May 15, 2015).

ERROR TO DISMISS PLAINTIFFS’ COMPLAINT AGAINST A DEFENDANT MANAGEMENT COMPANY FOR MEDICAL MALPRACTICE.

Mohan v. Orlando Health, Inc., 40 Fla. Law Weekly D1148 (Fla. 5th DCA May 15, 2015):

A doctor mistakenly removed a man’s ureter rather than his appendix. The plaintiffs sued various defendants, including Orlando Health (owner of the hospital) for direct liability, joint liability and vicarious liability. The trial court dismissed the complaint, and the Fifth District reversed.

As to the negligent credentialing count, the plaintiffs alleged that by virtue of its assumption of the hospital’s governance as described, the company had a duty to exercise reasonable care for the plaintiffs. Orlando Health moved to dismiss the count arguing that the parties’ pre-organizational agreement and/or management agreement which were attached as exhibits, made the hospital (South Lake), not Orlando Health, solely responsible for all decisions related to medical staff and credentialing. Plaintiffs asserted that while those provisions gave South Lake a great deal of control, it did not conclusively establish that it was solely responsible for credentialing. The Fifth District agreed.

As to the counts for joint liability based on partnership and joint venture theories, Orlando Health actually agreed based on the allegations that dismissal was erroneous (but urged affirmance based on the Tipsy Coachman doctrine).

As to the claims for vicarious liability, the trial court summarily dismissed, finding that Orlando Health could not be vicariously liable for the actions taken by the hospital’s CEO and board members. Plaintiffs challenged that ruling because the record was undisputed that the CEO and three board members of the hospital were employed by Orlando Health, and thus, it could be held responsible for the negligent acts of those persons. While Orlando Health asserted that the prospective defendants were not acting within the course and scope of their employment with it, it had no support for that assertion. Thus, it was error for the court to dismiss the complaint based on the vicarious liability count also.

TRIAL COURT ERRED IN FINDING WORK PRODUCT PRIVILEGE INAPPLICABLE BECAUSE CURRENT CASE ISSUES DIFFERED FROM THOSE FOR WHICH THE DOCUMENTS WERE PREPARED–TRIAL COURT ALSO ERRED BY FINDING ATTORNEY-CLIENT PRIVILEGE WAIVED.

Sedgwick Claims Management v. Feller, 40 Fla. Law Weekly D1157 (Fla. 5th DCA May 15, 2015):

The trial court found the work product privilege inapplicable on the grounds that the current case between the two parties involved issues different from those presented in prior litigation, for which the documents were prepared. However, it is well established that work product retains its qualified immunity even after the original litigation terminates, regardless of whether or not subsequent litigation is related or not.

The trial court also erred in finding the attorney-client privilege inapplicable when it never even reviewed the documents at issue. Courts must review documents that are claimed to be privileged in camera before making such a ruling.

The court found the trial court also erred in finding that the attorney-client privilege was waived by counsel’s statements at the hearing. Although counsel stated he did not anticipate objecting to the discovery requests, that exchange was not sufficientto waive the client’s objections which were later timely asserted in counsel’s written responses.

Finally, the trial judge erred by finding that the privilege was waived by counsel’s filing of a privilege log, which the judge viewed as insufficient due to its lack of detail. The log was not produced in response to a trial court order, and could have certainly been amended to cure any defects had counsel been given the opportunity. Although a waiver of privileges can ultimately serve as a sanction for failing to follow discovery rules, Florida courts generally recognize that an implicit waiver of an important privilege as a sanction should only be resorted to when the violation is serious.

COURT ALLOWS DISCOVERY FROM LAW FIRM ABOUT RELATIONSHIP WITH TREATING PHYSICIAN IF THERE IS A DEMONSTRATED “GOOD-FAITH” BASIS FOR “SUSPECTING” A REFERRAL RELATIONSHIP EXISTS.

Worley v. Central Florida Young Men’s Christian, 40 Fla. Law Weekly D1158 (Fla. 5thDCA May 15, 2015):

In another case seeming to chip away at the protections of the attorney-client privilege, the court required Morgan & Morgan–plaintiff’s attorneys to produce documents regarding their referral relationship with a group of doctors and their affiliates. In pursuing the discovery, the defendant noted it had reason to believe there was a “cozy agreement” between Morgan & Morgan and the treating physicians, due to the unusually high costs of the plaintiff’s medical bills (there is no indication in the case that this fact was set forth in an affidavit or in something evidentiary).

The defendant filed a supplemental request to produce to the plaintiff seeking copies of agreements, arrangements, understandings and referral deals between Morgan & Morgan and any of its attorneys and the doctors at issue, as well as documents reflecting amounts received and collected or compromised or adjusted on bills rendered for the medical care and treatment from these doctors.

During the physicians’ depositions, they all responded that they were unsure who referred the plaintiff to them, and while plaintiff’s attorneys objected to that question during her deposition based on attorney-client privilege. In response to defendant’s other questions, the plaintiff stated she was not referred by another doctor, by Florida Hospital East, or by a friend or relative.

The trial court then required Morgan & Morgan for a period of time of three years before the accident and six months after it, to produce the agreements mentioned above, as well as names of all cases where a client was referred directly or indirectly by any attorney employed or affiliated with Morgan & Morgan to certain medical entities. The order was silent as to which party should bear the costs.

The court reiterated that Florida law makes the financial relationship between the law firm and the treating physician relevant to show potential bias. Such information is not privileged.

To protect the privacy interests of the treating physicians and their former patients before ordering overly intrusive financial bias information concerning a treating physician’s relationship with a plaintiff law firm, there must be some “evidence” of a referral relationship. In this case, the defendant tried to establish it through the doctor, as the Steinger case says that such information should be sought from the doctor or other witnesses before it is sought from the parties’ legal counsel. However, when the defendant has taken the appropriate steps and exhausted its inquiry to no avail, then the defendant is able to ask the plaintiff herself.

The Second District ruled that the decision in Burt v. Government Employees Insurance Co. is no longer good law, because of subsequent case law allowing discovery pertaining to the financial relationship between the plaintiff’s treating physician and his or her lawyers. The court certified conflict with that case.

The court found no error in requiring the plaintiff’s attorney to produce any and all documents reflecting formal and informal arrangements, etc., and distinguished that type of discovery from the detailed financial discovery that is prohibited absent a preliminary showing of a referral relationship.

The court then said that the fact that the order did not include a provision for costs, and that the order may be overly burdensome to comply with, does not prevent the plaintiff from seeking reasonable compensation for the costs at the end of the case. The court did cite to a case that says unless manifest injustice would result, the court will require that parties seeking discovery to pay the expert a reasonable fee for time spent in responding to discovery.

The court concluded by stating the order at issue essentially required the plaintiff to produce information regarding the referral relationship between her attorneys and her treating physicians, which was directly relevant to the potential bias of the physicians. It did not require production of any records regarding the money exchanged between Morgan & Morgan and the physicians.