FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 22

CASES FROM THE WEEK OF JUNE 3, 2016

HEALTH CARE PROVIDER NOT REQUIRED TO OBTAIN INFORMED CONSENT FROM BOTH PARENTS BEFORE RENDERING NON-EMERGENCY CARE OR TREATMENT TO A MINOR CHILD--RULE APPLIES EVEN WHEN THE HEALTH CARE PROVIDER ALLEGEDLY KNEW OR SHOULD HAVE KNOWN THAT THE OTHER PARENT OBJECTED TO THE CARE OR TREATMENT.

Angeli v. Kluka, 41 Fla. Law Weekly D1223 (Fla. 1st DCA May 25, 2016):

The father of this minor child filed a complaint alleging battery and intentional interference with the parent-child relationship after the defendant surgeon performed adenoid and ear-tube surgery on a minor with the mother’s consent but without the father’s. The parents were separated, and both parents had equal custody rights to their two minor children. The record does not reflect that any court order existed depriving either parent of authority to consent to medical care for the children, nor any other legal impediment to either parent’s consent.

After the mother scheduled the surgery, the father called the surgeon the night before and expressed his lack of consent. The surgeon then canceled the surgery.

Three months later, the mother rescheduled, and the father alleged that he again informed a member of the surgeon’s staff by phone that he did not consent to the procedure. The chart also included a follow-up note entered after the surgery, stating that the mother had called before and informed the staff that the parents’ attorneys had worked out an agreement and that the father would be at the hospital to consent. The father alleged that the mother misrepresented his position.

The surgeon called the father five days after the operation to give a follow-up report. He then asserted that he did not know about, or consent to the surgery, and did not want to speak to the surgeon. He said he would be speaking to his attorney.

In the statute on informed consent, the legislature allows a “parent, legal custodian or legal guardian” (singular) to consent to a minor’s medical care or treatment. § 743.0645(1)(c). Nothing in the law requires a health care provider to obtain consent from both parents or from more than one among multiple people who are authorized to give consent for medical care of a minor.

The First District concluded just as the trial court did, that Florida does not require health care providers to assume the burden of refereeing or going to court to resolve disputes between parents, as long as one legally authorized person provides consent. After admonishing parents purportedly committed to successful “co-parenting” and advising them that an injunction would be necessary to stop the procedure, the court explained that the bottom line is that health care providers are not required to referee parental disputes about medical care for their minor children. The court affirmed the dismissal of the father’s complaint.

TRIAL COURT ABUSED DISCRETION BY DENYING PLAINTIFF’S MOTION TO CONTINUE TRIAL AND THEN DISMISSING THE ACTION WHEN PLAINTIFF FAILED TO APPEAR FOR TRIAL, WHERE THE PLAINTIFF’S FAILURE WAS DUE TO HIS INABILITY TO OBTAIN A VISA TO TRAVEL FROM BRAZIL TO THE UNITED STATES, DEFENDANT WAS NOT PREJUDICED BY THE CONTINUANCE, AND THE STATUTE HAD RUN SO PLAINTIFF WOULD BE PRECLUDED FROM REFILING HIS COMPLAINT.

Daher v. Pacha NYC, 41 Fla. L. Weekly D1228 (Fla. 3rd DCA May 25, 2016).

TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED ATTORNEY’S FEES PURSUANT TO SECTION 57.105(1) WITHOUT MAKING DETAILED FINDINGS IN ITS ORDER DESCRIBING THE BASIS FOR THE FEE SANCTION.

Jean-Pierre v. Glaberman, 41 Fla. L. Weekly D1236 (Fla. 4th DCA May 25, 2016):

Before a court may award attorney’s fees as a sanction as it did in this foreclosure case, it is necessary for it to make detailed findings regarding the basis for the fee’s sanction.

Because this order contained no findings of fact on the motion for sanctions, the order did not fully comply with the requirements of the law, and thus the case was remanded to the trial court to make appropriate findings.

ERROR TO DENY RULE 1.540(b) MOTION WITHOUT AN EVIDENTIARY HEARING WHERE THE MOTION ALLEGED--WITH SWORN AFFIDAVITS--THAT DEFENDANT DID NOT RECEIVE NOTICE OF HEARING ON THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN TIME TO ATTEND THE HEARING.

Jones v. Geico, 41 Fla. L. Weekly D1236 (Fla. 4th DCA May 26, 2016):

After a hearing, the trial court entered final summary judgment in favor of Geico awarding it the amount of damages it sought plus costs and interest. Defendant filed a pro se motion to set aside the default and motion for rehearing specifically invoking rule 1.540(b). They explained that through the mishandling of their mail they did not receive notice of the hearing that was set for 8:45 a.m. until about 7:40 a.m., and appeared in court at 9:15. At that point the judge told them the case could not be discussed without both parties present and they requested a new hearing on the merits.

After explaining the problem with the mail, with the accompanying affidavits, the trial court summarily denied the defendant’s motion without explanation.

The defendant argued that the trial court abused its discretion in not vacating the judgment and giving them a chance to be heard. In sworn affidavits attached to the 1.540 motion, they stated they did not receive notice of the hearing for the motion for summary judgment until the morning of the hearing, too late to arrive in time to attend it. Because of the due process issue, the court reversed the order denying their motion and remanded for an evidentiary hearing on their claim that they did not receive notice of the hearing in time to attend it.

TRIAL COURT ERRED IN GRANTING MOTION TO DISMISS WITHOUT ALLOWING PLAINTIFF AN OPPORTUNITY TO AMEND THE COMPLAINT WHERE NO RESPONSIVE PLEADING HAD BEEN FILED--MOTION TO DISMISS IS NOT A RESPONSIVE PLEADING.

Solonenko v. Vogue Properties, 41 Fla. L. Weekly D1238 (Fla. 4th DCA May 25, 2016):

Under rule 1.190(a) a party may amend a pleading once as a matter of course at any time before a “responsive pleading” is served. A motion to dismiss is not a responsive pleading.

After the trial court dismissed the plaintiff’s complaint, she moved for a hearing arguing she had the right to amend her complaint once as a matter of right. The trial court denied her motion without allowing the amendment.

While the defendant argued that the amendment of the complaint would have been futile, the plaintiff still had a right to amend it even if it appeared likely that it would be meritless. Thus, the court reversed the dismissal.

SUMMARY JUDGMENT FOR DEFENDANT JUNGLE GYM MANUFACTURER REVERSED, WHEN THERE WAS INCONSISTENT TESTIMONY AND A FACTUAL ISSUE AS TO THE CAUSATION OF THE CHILD’S INJURIES.

Bogatov v. City of Hallandale Beach, 41 Fla. L. Weekly D1252 (Fla. 4th DCA May 25, 2016):

Plaintiff initially sued the City of Hallandale Beach claiming that the City’s negligence in maintaining the park led to the child’s injuries when he fell off of the jungle gym onto an unprotected hard surface directly underneath, causing a fracture and multiple contusions. The plaintiff amended the complaint to add the jungle gym manufacturer as a defendant.

The amended complaint further alleged that at the time the jungle gym was sold, the product was defective and unsafe because of defects in its design, pointing specifically to the lack of adequate handles used for grasping. Plaintiff claimed that this defect resulted in the child’s injuries.

The trial court granted the manufacturer’s motion for summary judgment without stating its reasoning.

The Fourth District stated that summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings, and summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits and other evidence that there is no genuine issue of material fact.

In this case, the record established enough evidence to create a genuine issue of material fact as to the cause of the child’s injuries. In Florida, evidence of an inconsistency in either testimony or documentary evidence itself creates disputed issues of fact which cannot be resolved by the trial court on a motion for summary judgment.

On an unrelated ruling, the court addressed two medical reports indicating that the child fell either two or four feet as relevant to a statement for medical diagnosis. The fact that a patient fell from a height as opposed to falling while running on the ground was important information for the purpose of diagnosis, and thus those statements were admissible as exceptions to hearsay under section 90.803(4).