The Week in Torts – Cases from the Week of August 18, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 33

CASES FROM THE WEEK OF AUGUST 18, 2017

NO ERROR IN GRANTING DIRECTED VERDICT FOR ANESTHESIOLOGIST IN MEDICAL MALPRACTICE CASE–NO COMPETENT SUBSTANTIAL EVIDENCE OF BREACH OR CAUSATION TO SUPPORT THE VERDICT.

Ruiz v. Tenet Hialeah Healthsystem, 42 Fla. L. Weekly D1727 (Fla. 3^rd DCA August 9, 2017):

A man sued to recover damages for the death of his wife who died of exsanguination during a surgical procedure to remove a cancerous tumor from her skull. The anesthesiologist defendant had conducted the deceased wife, Mrs. Espinosa’s pre-anesthesia evaluation.

The physician testified that he only saw Mrs. Espinosa for three to five minutes, after which another physician completed the evaluation. He had check-marked a series of boxes on the pre-anesthesia evaluation, signed the evaluation under the line marked “physician” and wrote in the date and time. He advised the second anesthesiologist that there were no major medical problems whatsoever, but advised that he might want to look at the EKG, which was blurry but readable. He did not advise anyone that it reflected an abnormality which he noted.

However, the defendant testified that the abnormal EKG did not mean anything in light of the number of abnormal EKGs he sees on an average week, and said that Mrs. Espinosa was one of the healthiest patients he had ever seen.

The doctor also testified that he never saw the protein level in Mrs. Espinosa’s urine, because he had only reviewed the first page of the lab results. However, the remaining two pages that showed there was an abnormal amount of protein in the urine.

The second anesthesiologist testified that he did a full evaluation on the woman after the defendant. He evaluated all lab results, EKG results, and signed off on the evaluation.

None of the expert witnesses testified that the defendant’s evaluation of Mrs. Espinosa fell below the standard of care, such that any breach more likely than not caused her death. On this record, the trial court directed a verdict, finding that there was no proof of causation. The appellate court agreed further finding that the record was devoid of competent and substantial evidence to support that either the blurry EKG or the abnormal protein level results caused Mrs. Espinosa’s death.

Judge Emas authored a lengthy and detailed dissent challenging the majority’s conclusion.

TRIAL COURT PROPERLY AWARDED FEES PURSUANT TO CLEAR PROPOSALS FOR SETTLEMENT.

The Zodiac Group v. GrayRobinson, P.A., 42 Fla. L. Weekly D1731 (Fla. 3^rd DCA August 9, 2017):

A law firm entitled to attorneys’ fees served separate proposals for settlement. One was to the corporation and included a release of all defendants if accepted. The second was to one of the corporation’s principals, and also included a release limited to that principal if the offer had been accepted. The third was to the other principal, and also included a release limited to that person only.

The court rejected that these proposals were ambiguous. It found they were separate, and not joint proposals, made to each defendant, and that they allowed each defendant to individually evaluate and settle with the law firm irrespective of the other parties’ decisions.

PIP INSURER CORRECTLY DENIED MEDICAL BENEFITS FOR INSURED’S SON WHO HAD NOT BEEN DISCLOSED AS A MEMBER OF THE HOUSEHOLD AT THE TIME THE POLICY WAS APPLIED FOR.

Priority Medical Rehab v. United Auto, 42 Fla. L. Weekly D1732 (Fla. 3^rd DCA August 9, 2017):

United Auto issued a PIP policy to a man who failed to disclose his son as a member of the household at the time the policy was applied for. When the son was involved in an accident, Priority provided treatment to the son in exchange for assignment of the PIP benefits. While United Auto did not rescind the policy or refund the premium paid–the applicant was still a proper insured–it paid the collision claim for repair but refused to pay the PIP claim for the son.

The county court judge granted summary judgment for the insurer, and noted that the failure to list the son precluded coverage for a claim arising out of the son’s driving of the vehicle, but not for the insured himself. Therefore United was within its rights to retain the premium.

Ultimately, the Third District denied the plaintiff’s petition for second tier certiorari. Such review is limited to two bases: (1) whether the circuit court afforded procedural due process and (2) whether the circuit court applied the correct law (or departed from the essential requirements of law). Here, there was no argument about being afforded procedural due process, and the court found the correct law had been applied. Thus, the court denied the petition for second tier certiorari.

TRIAL COURT ERRED BY FAILING TO REDUCE LODESTAR AMOUNT BASED ON RESULTS OF OBTAINED FACTOR, WHERE UNDER ANY VIEW, ONLY LIMITED SUCCESS WAS ACHIEVED IN THE UNDERLYING LITIGATION.

Peterson v. Hecht Consulting Corp., 42 Fla. L. Weekly D1739 (Fla. 4^th DCA August 9, 2017):

This case involved a claim for prevailing party attorneys’ fees and the lodestar figure. While the plaintiff had prevailed on a simple breach of contract claim (according to the court), it was unsuccessful on the far more lucrative civil theft claim. While the plaintiff only recovered $10,000 on the breach of contract claim, the attorney claimed $90,000 in fees.

The Fourth District stated that under any view because the appellee had achieved only limited success in the underlying litigation the court should have reduced the lodestar amount based on the results obtained.

While the trial court already reduced the $90,000 claim to $29,025, the Fourth District reversed for further consideration of that amount because the only evidence on the subject presented was the defendant’s expert who said that the lodestar amount should be reduced in proportion to the amount recovered as compared to the damages sought without any real basis for saying so.

TRIAL COURT ERRED IN DISMISSING PERSONAL INJURY SUIT BASED ON FORUM NON CONVENIENS WITHOUT CONDUCTING AN ANALYSIS REQUIRED BY KINNEY SYSTEM, INC. V. CONTINENTAL INSURANCE CO.

Celebration Cruise Line v. Dobrianskiy, 42 Fla. L. Weekly D1741 (Fla. 4^th DCA August 9, 2017).

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO VACATE JUDGMENT WHERE DEFENDANT DID NOT RECEIVE A COPY OF THE JUDGMENT UNTIL AFTER THE APPEAL TIME HAD RUN BECAUSE PLAINTIFF FURNISHED THE COURT WITH AN ERRONEOUS ADDRESS FOR THE DEFENDANT.

Diquollo v. TD Bank, 42 Fla. L. Weekly D1765 (Fla. 5^th DCA August 11, 2017).

STATUTE OF LIMITATIONS ON A NEGLIGENCE ACTION BY A PRISONER ALLEGING PHYSICAL INJURY IS FOUR YEARS.

Parker v. The Geo Group, Inc., 42 Fla. L. Weekly D1775 (Fla. 1^st DCA August 14, 2017):

The trial court had relied on the one year statute of limitations period found in section 95.11(5)(g), to dismiss the claim. The prison group ultimately conceded that provision was not applicable.

The applicable statute of limitations for a negligence action by a prisoner alleging physical injury against a private entity providing correctional services in Florida should be the four year statute of limitations outlined in section 95.11(3)(a).