FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 5

CASES FROM THE WEEK OF FEBRUARY 3, 2017

THE ATTORNEY’S FEE LIMIT ENACTED BY THE LEGISLATURE IN THIS CLAIMS BILL CASE, CONSTITUTED AN UNCONSTITUTIONAL IMPAIRMENT OF ATTORNEYS’ CONTRACT WITH THE PLAINTIFFS.

Searcy Denney v. State, 42 Fla. L. Weekly S92 (Fla. January 31, 2017):

The original case arose out of the birth of a baby who sustained a catastrophic injury as a result of the negligence of employees at Lee Memorial Health System in 1997. The family retained Searcy Denney on a contingency fee agreement, and the agreement provided that in the event that any of the parties paying for damages is a governmental agency, the fees to the attorneys would be limited as provided by law (25%).

A five-week trial in 2007 resulted in an approximately $30 million verdict for the family. The appellate court affirmed the final judgment against the sovereign hospital for $200,000 (the large majority to the child and the rest to the parents individually).

In 2012, the legislature finally passed a claims bill directing Lee Memorial to pay $10 million, and an additional $5 million in annual installments to the child’s guardianship. The claims bill further stated the payment of fees would not exceed $100,000. There were no funds awarded to the parents (they had each received over $1 million at trial).

With the full support of the family, Searcy Denney petitioned the guardianship court to approve a closing statement allowing $2.5 million for attorneys’ fees based on the contract and the limitations of section 768.28(8). The evidence presented to the guardianship court revealed that the firms had spent more than 7,000 hours representing the family, and expended more than $500,000 in costs.

The state of Florida intervened to defend the constitutionality of the claims bill enactment. The guardianship denied the request for fees.

Even though the Fourth District wrote that it sympathized with the plight of the attorneys, and to people who might have difficulty obtaining counsel to take these kinds of cases based on this precedent, it found the concerns to be legislative, and affirmed that the guardianship correctly recognized the legislature’s prerogative to limit the payment of fees and costs to $100,000.

Chief Judge Ciklin dissented. He opined that under article I, section 10 of the United States Constitution, and article I, section 10 of the Florida Constitution, no law may impair the obligation of contracts. The fee agreement with the plaintiff’s family was impaired by the fee limitation provision in the claims bill.

Judge Ciklin also reasoned that the state failed to show that the draconian limitation on attorneys’ fees and costs was necessary to accomplish some type of important public purpose.

Explaining that a claims bill is a voluntary recognition of the legislature’s moral obligation, and one firmly entrenched in legislative discretion, the supreme court disagreed that the fee provision of section 768.28 and the constitutional prohibitions against the impairment of contract, were of no consequence.

Ultimately, the court held that the fee limitation in the claims bill was unconstitutional and could not stand because it impaired a pre-existing contract. The court further held that any valid portion of the act could be severed from the invalid portion, and still accomplish the beneficial purpose of providing compensation due to the injured child.

THE FEDERAL PATIENT SAFETY AND QUALITY IMPROVEMENT ACT DOES NOT PREEMPT AMENDMENT 7--ADVERSE MEDICAL INCIDENT REPORTS ARE NOT PATIENT SAFETY WORK PRODUCT UNDER THAT ACT.

Charles v. Southern Baptist Hospital of Florida, 42 Fla. L. Weekly S79 (Fla. January 31, 2017):

Article X, section 25, of the Florida Constitution, generally referred to by its ballot designation, “Amendment 7,” was a proposed citizen initiative adopted in 2004. It provides patients with a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

The Constitution defines “adverse medical incidents” broadly to include “any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient….” Article X, §25(c)(3), Fla. Const. As the supreme court explained, Amendment 7 gives patients, including those who become medical malpractice plaintiffs, access to any adverse medical incident record, including incidents involving other patients, as well as occurrence reports created by health care providers.

The Federal Patient Safety and Quality Improvement Act creates a voluntary confidential non-punitive system of data sharing of health care errors, for the purpose of improving the quality of medical care and patient safety. To encourage an incentivized participation, Congress created a protected legal environment, so providers would be comfortable sharing data both within and across state lines, and without the threat that the information would be used against them.

In reviewing the nuts and bolts of the legislation, the Florida Supreme Court concluded that the Federal Act was never intended as a shield to the production of documents required by Amendment 7 and other provisions of Florida law, and further held that Amendment 7 and other provisions of the Florida law are not preempted by that Act.

Instead, the clear intent of the Federal Act was for the voluntary reporting system to function harmoniously within existing state reporting and discovery laws. The Federal Act was intended by Congress to improve the overall health care in this system; not to act as a shield to providers, thereby dismantling an important right afforded to Florida citizens through Amendment 7.

Finally, the court made clear that health care providers should not be able to unilaterally decide which documents will be discoverable, and which will not in medical malpractice cases.

TRIAL COURT DID NOT ERR IN ENTERING SUMMARY JUDGMENT FOR THE CITY WHEN A WOMAN SLIPPED IN SOUP ON THE FLOOR OF THE LOBBY IN ONE OF ITS BUILDINGS--THE MAINTENANCE COMPANY’S CONTRACT DID NOT CONFER A HEIGHTENED STANDARD OF CARE ON IT TO CONSTANTLY PATROL AND SUPERVISE THE AREA.

Wilson-Greene v. City of Miami, 42 Fla. L. Weekly D237 (Fla. 3rd DCA January 25, 2017):

A woman was making a delivery to the City’s Building Department, and took the elevator the second floor to conduct her business. More than 15 minutes later, she returned to the lobby using the same elevator and the same elevator bank, and while taking a couple of steps out of the elevator slipped and fell in soup that was “not hot.” Although there was a restaurant in the lobby of the building, there was no evidence that the restaurant was serving that kind of soup that day.

There was a maintenance contract between the co-defendant and the City providing that the co-defendant would “pay close attention to the three-story lobby area” and would not “underestimate the lobby requirements as this is a critical area of importance.”

The plaintiff essentially asserted that the maintenance company owed a duty to the building patrons to constantly patrol and supervise the area. The Third District rejected that reading of the contract, still recognizing that where an express provision within a contract provides for a heightened standard of care, the professional must perform in accordance with those terms.

While the contract did emphasize the importance of maintaining the lobby area, the court found the language was insufficient to place a heightened standard of duty on a maintenance company. In considering whether there was an issue of fact in the transitory foreign substance part of the case, courts look to the length of time the condition existed before the accident occurred.

In this case, the jury would have had to stack inferences to conclude that the maintenance company and the City had constructive notice of a dangerous condition. Although it is true that a non-moving party to a summary judgment may set forth a general issue of material fact through justifiable inferences from the facts presented, there is a limitation on stacked inferences. The limitation is that if a party to a civil action depends on the inference to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference to establish a further fact, unless it can be found that the original basic inference was established to the exclusion of all other reasonable ones.

Here, additional facts were needed to reach the conclusion that the soup was on the floor long enough to cool without assuming other facts--e.g., that it was hot prior to being spilled. The mere presence of soup that was “not hot” was not enough to establish constructive notice.

The court distinguished this case from melting substances cases, finding that here the court would have to infer that the substance was hot prior to the spilling on the floor, and then infer that it was on the floor a sufficient amount of time to have cooled. However, that requires a jury to impermissibly stack inferences necessitating entry of summary judgment.

FEDERAL LAW REQUIRES REDACTION OF IDENTIFYING INFORMATION OF “VOLUNTARY REPORTERS” IN EVENTS INVOLVING MEDICAL DEVICES--CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING DEFENDANT’S REQUEST TO REDACT IDENTIFYING INFORMATION FROM REPORTS AND RELATED DOCUMENTS.

Howmedica Osteonics Corp. v. Trowbridge, 42 Fla. L. Weekly D245 (Fla. 4th DCA January 25, 2017):

The trial court denied the defendant’s request to redact identifying information from reports and related documents, of health care providers who reported “foreign adverse events” associated with a medical device.

Noting that certiorari lies to protect privileged or protected material to avoid the irreparable harm of wrongful disclosure, the court granted the petition. Because federal law mandates that identifying information of voluntary reporters of adverse events involving medical devices be kept confidential--it does not distinguish between foreign and domestic reporters--the trial court’s order requiring the defendant to produce unredacted identifying information for health care providers who reported foreign adverse events was in violation of federal law and the disclosure of such information would result in irreparable harm.

CERTIORARI GRANTED WHERE PARTY ISSUED IMPERMISSIBLE SUBPOENA IN PROBATE CASE.

United States Sugar Corp. v. Estate of Mullins, 42 Fla. L. Weekly D260 (Fla. 4th DCA January 25, 2017):

The decedent died on the petitioner’s property, but the petitioner was not named as a defendant in the wrongful death lawsuit.

In the probate matter, plaintiff issued a subpoena seeking documents from petitioner, regarding all documents, statements, reports, photographs and other materials relating to petitioner’s investigation of the accident which killed the decedent. The trial court ordered petitioner to produce the discovery.

The Fourth District granted the writ of certiorari. It found that the subpoena sought documents not reasonably calculated to lead to the discovery of admissible evidence in the probate action (rule 1.280(b)(1) allows discovery relevant to the “subject matter of the pending action”). Because the potential defendant was not a party to the estate proceeding in the wrongful death products liability action, and the issues could not be litigated in the estate proceeding, the discovery in that probate proceeding was not relevant.

Additionally, the subpoena sought documents which according to its plain language and the petitioner’s affidavit were privileged work product. When materials are prepared in anticipation of litigation or for trial, the party must make a showing that he or she has the need for the discovery for the preparation of the case and is unable without undue hardship to obtain its substantial equivalent. That did not occur.

Finally, the probate court erred in requiring the petitioner as a non-party to file a privilege log. The plain language of rules 1.280 and 1.351 (incorporated into the Florida Probate Rules under rule 5.080(a)(1)(9) do not require non-parties to file privilege log).

HEALTH CARE PROXY DOES NOT HAVE AUTHORITY TO WAIVE RIGHT TO JURY TRIAL AND BIND A NURSING HOME PATIENT TO ARBITRATE CLAIMS BECAUSE ARBITRATION IS NOT A “HEALTH CARE DECISION”--NURSING HOME RESIDENT ALSO NOT BOUND BY THE ARBITRATION AGREEMENT ON THE BASIS THAT RESIDENT WAS THIRD-PARTY BENEFICIARY OF AGREEMENT.

Moen v. Bradenton Council on Aging, 42 Fla. L. Weekly D279 (Fla. 2nd DCA January 27, 2017):

A woman was admitted to a nursing home, and the next day her daughter accepted a health care proxy designation on her mother’s behalf. The mother never executed a durable power of attorney in her daughter’s favor, but the daughter signed the voluntary arbitration agreement and the admission forms.

When the nursing home tried to compel arbitration in the case brought on the mother’s behalf, the trial court upheld arbitration. However, the appellate court reversed, finding that while arbitration is “a preferred method of dispute resolution,” it is not favored when a party does not agree to arbitrate.

In this case, the arbitration agreement was signed as part of the admission agreement which the daughter signed for the mother in her capacity as a health care proxy. A health care proxy does not have authority to waive the right to jury trial and bind a nursing home patient to arbitrate claims because that is not a health care decision.

Additionally, the Florida Supreme Court has recently rejected the idea that the nursing home resident is a third-party beneficiary of an arbitration agreement that she was bound to.