FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 4

CASES FROM THE WEEK OF JANUARY 27, 2017

THERE IS A “FOREIGN BODY PRESUMPTION OF NEGLIGENCE” WHEN A FOREIGN BODY IS FOUND INSIDE A PATIENT’S BODY-THE STATUTORY FOREIGN BODY PRESUMPTION DIFFERS FROM COMMON LAW RES IPSA LOQUITUR IN THAT THE FOREIGN BODY PRESUMPTION PROVIDES PLAINTIFFS WITH A PRESUMPTION OF NEGLIGENCE, EVEN IF DIRECT EVIDENCE AND NEGLIGENCE EXISTS.

Dockswell v. Bethesda Memorial, 42 Fla. L. Weekly S32 (Fla. January 26, 2017):

There is a “foreign body” presumption of negligence found within § 766.102(3)(b) which arises when a foreign body is left inside a patient’s body. If the presumption kicks in, the burden of proof in a medical malpractice case shifts to the defendant to prove that no medical negligence occurred.

In the Fourth District case below, the court had determined that when direct evidence of negligence exists, the plaintiff is not entitled to the statutory presumption. However, that is not the case. Unlike the common law doctrine of res ipsa loquitur, where direct evidence of negligence may defeat is application, the only prerequisite to applying the “foreign body presumption” and related jury instruction 402.4c is the “discovery of the presence of a foreign body” in the patient’s body.

Unlike what the Fourth District said in Dockswell, the statutory foreign body presumption is not a codification of the doctrine of res ipsa loquitur in medical negligence.

In res ipsa, “the thing speaks for itself.” It is a doctrine with extremely limited applicability and provides an injured plaintiff with a common sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

As an example, the court used a heavy object falling from an elevated position that causes damage. In that situation where it is clear that the object would not have fallen absent negligence, res ipsa directs that even though the injured party might not be able to explain how or why the object fell, the plaintiff is entitled to a presumption of negligence despite the lack of evidence.

Conversely, when a party proves that a foreign object remains improperly inside a person’s body, that presumption applies irrespective of whether there is evidence of direct negligence or not.

WHETHER AN AMENDED COMPLAINT “RELATES BACK” ASKS WHETHER THE NEW CLAIM(S) WITHIN THE AMENDED PLEADING IS PART OF THE SAME CONDUCT, TRANSACTION, OR OCCURRENCE AS IN THE ORIGINAL PLEADING.

Palm Beach County School Board v. Doe, 42 Fla. L. Weekly S23 (Fla. January 26, 2017):

The trial court in this case had dismissed the amended complaint because the plaintiffs asserted a new claim against the defendants.

The supreme court held that the proper focus of the inquiry is not whether the amended pleading sets forth new or different claims, but whether those new claims within the amended pleading, are part of the same conduct, transaction or occurrence as those in the original pleading.

IN ANOTHER “RELATION BACK” CASE, THE COURT RULED THAT THE AMENDMENT ASSERTING A NEW CAUSE OF ACTION RELATES BACK WHERE THE CLAIM ARISES OUT OF THE SAME CONDUCT, TRANSACTION OR OCCURRENCE, EVEN WHERE THE LEGAL THEORY OF RECOVERY HAS CHANGED, AND THE AMENDED CLAIM REQUIRES AN ASSERTION OF DIFFERENT ELEMENTS.

Kopel v. Kopel, 42 Fla. L. Weekly S26 (Fla. January 26, 2017):

In this case, the plaintiff’s original complaint did not specifically allege a breach of an oral promise. Many years after the original filing, the plaintiff filed his fifth amended complaint, where he alleged that an oral promise was made.

The supreme court explained how over the years, two lines of cases have evolved; one which holds that when an amended complaint states a new cause of action it cannot relate back as a matter of law, and one where cases arising out of similar facts and occurrences regardless of the theories of recovery, do relate back.

As set forth by the supreme court, as long as an amended pleading asserts a claim that arises out of the same conduct, transaction or occurrence as the original, and is not factually distinct, the fact that the legal theories of recovery are supplemented and modified, will not change the ability of the amended pleading to relate back.

ALLSTATE’S POLICY LANGUAGE WAS ENOUGH TO CONSTITUTE LEGALLY SUFFICIENT NOTICE OF ITS ELECTION TO USE THE PERMISSIVE MEDICARE FEE SCHEDULES TO LIMIT REIMBURSEMENTS FOR MEDICAL EXPENSES IN PIP CASES.

Allstate Insurance Co. v. Orthopedic Specialists, 42 Fla. L. Weekly S38 (Fla. January 26, 2017):

For those lawyers who do not do a lot of PIP work, many insurance companies have tried their best as of late to assert that a “reasonable charge” for medical expenses under the PIP statute is simply payment based on 80% of 200% of Medicare. However, the Florida Supreme Court has previously held that if insurance companies are going to pay that way, they need to specifically advise insureds in the policy. This case is about whether Allstate’s policy did that, and provided legally sufficient notice.

The language used by this policy stated that “any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as inactive, amended or otherwise continued in the law, including, but not limited to, all fee schedules.”

Allstate argued that this language was sufficient to allow it to trigger § 627.736(5)(a)2 which explicitly allowed payment made pursuant to Medicare. The assignee argued otherwise.

The Florida Supreme Court majority found the policy language clearly and unambiguously noted that any amounts payable for medical expenses would be subject to any and all limitations authorized by § 627.736, which included any and all fee schedules.

The plaintiff, however, argued that Allstate’s policy was ambiguous under the Virtual Imaging case, because it failed to state that Allstate would not actually pay 80% of reasonable charges and instead would calculate benefits under the permissive Medicare fee schedule (5)(a)2.

The court disagreed. It found that in the context of Allstate’s PIP policy, the only reasonable interpretation of the phrase “shall be subject to” was a mandatory command stating that any amounts payable for medical expenses reimbursements would be subject to any and all limitations authorized by § 627.736, including all fee schedules.

The court concluded that the only fee schedule limitations applicable to insurer payments contained within the statute were located in section (5)(a)2, and that those fee schedules referred to in subsection (a)1 were not within the category of limitations referred to in the policy endorsement.

Thus, Allstate’s policy gave proper notice allowing it to pay pursuant to the Medicare fee schedule.

ERROR TO ALLOW THE INSURER TO INTERVENE IN A PROBATE PROCEEDING BASED ON A COBLENTZ AGREEMENT--ALSO, ONCE THE INSURER REFUSED TO DEFEND INSURED IT WAS PRECLUDED FROM RE-LITIGATING ISSUES OF THE INSURED’S LIABILITY IN SUBSEQUENT PROCEEDINGS.

In Re: Estate of Arroyo v. Infinity Indemnity Insurance Co., 42 Fla. L. Weekly D192 (Fla. 3rd DCA January 18, 2017):

After a bad car accident, the plaintiff suffered severe incapacitating injuries and the defendant driver died. Plaintiff sued the Estate, but never filed a written claim in the probate court. Although the Estate tendered the defense of the negligence claim to the insurer, the insurance company declined to defend.

The Estate then settled the negligence lawsuit by entering into a Coblentz agreement with the plaintiff in which they agreed to entry of a consent judgment. The Estate assigned any rights it had against the insurance company to the plaintiff, and subsequent to the consent judgment, the plaintiff sued the insurance company arguing bad faith.

The insurer moved for summary judgment in the bad faith action, alleging that because the plaintiff had failed to file a statement of claim in the probate court, she could no longer do so because the claim was now barred by the statute of limitations.

The insurer also waged an attack in the probate court against the bad faith claim, seeking a motion for leave to intervene for the purpose of determining whether the Estate’s personal representatives had the authority to settle the negligence lawsuit by entering into the Coblentz agreement.

As an initial matter, the court observed that the insurance company’s motion to intervene in the probate court did not apply, because the probate rules preclude the application of the Florida Rules of Civil Procedure unless the rule itself specifically provides and this one did not. However, the plaintiff failed to preserve that argument by not raising that issue.

Still, the court ruled that under both Probate Rule 5.010 and F.R.C.P. 1.230, the probate court abused its discretion by granting the insurer’s motion to intervene. Even if the motion to intervene had been properly before the probate court, it was error to allow the insurance company to raise defenses that it could have raised had it defended the Estate prior to the Coblentz agreement.

Additionally, as far as the circuit court summary judgment went, it is axiomatic that a Coblentz agreement establishes the insured’s liability. The subsequent entry of a consent judgment is conclusive against the insurer as to all matters determined in the judgment.

Had the insurance company elected to defend the Estate as it was asked to, it could have objected to the entry of the Coblentz agreement and the consent judgment, raised the failure of the plaintiff to timely file his claim in probate court, and asserted defenses including statutory limitations to bar recovery. But when the insurance company declined to defend the Estate, it waived the time period set forth in the probate statute. Once the insurance company declines to defend, it no longer has standing to assert defenses.

PLAINTIFF NOT ENTITLED TO WRIT OF CERTIORARI TO STOP A POST-VERDICT JURY INTERVIEW WHERE THE PLAINTIFF COULD NOT DEMONSTRATE IRREPARABLE HARM--CONTINUATION OF LITIGATION DOES NOT CONSTITUTE IRREPARABLE HARM NOR DOES HARM TO JURORS OR THE SANCTITY OF THE JURY PROCESS--CONFLICT CERTIFIED.

Laycock v. TMS Logistics, Inc., 42 Fla. L. Weekly D208 (Fla. 1st DCA January 19, 2017):

After a truck accident and a multi-million dollar verdict, there were allegations of juror misconduct which led to an order allowing jury interviews. The plaintiff petitioned for a writ of certiorari, trying to stop the interviews before they began.

Interestingly though, while the plaintiff objected to the interview of one juror, the trial court allowed it and the plaintiff did not seek certiorari. After the interview went forward, the trial court considered the defendant’s motion to interview additional jurors. The trial judge concluded that the defendant had already established by sworn factual allegations in the testimony of the juror interviewed a prima facie case of juror misconduct which would require a new trial if found to be true unless the plaintiff could demonstrate no reasonable possibility that the juror misconduct affected the verdict. The court then allowed interviews of the five remaining jurors.

In assessing plaintiff’s petition, the court reminded us that we had to show material injury that cannot be corrected on appeal and therefore amounts to irreparable harm. Plaintiff said the irreparable harm was needlessly extending the litigation in the matter, exploring the subjective motives of jurors, and invalidating the privacy of the jury deliberation room.

The court said that even if demonstrated, those harms would not provide a basis for jurisdiction. The court addressed the Baptist Hospital case, which approved a decision granting certiorari without even breathing a word about irreparable harm. However, it reminded us that the Florida Supreme Court has long established an exacting standard for such review to require irreparable harm to the petitioner.

Finally, the plaintiff argued that there were substantial policy benefits of having interlocutory reviews of orders like this one. The court noted though that the supreme court determines which categories of non-final orders warrant immediate review under 9.130 and not intermediate appellate courts. Certiorari should not be used to circumvent the interlocutory appeal rule either, which the supreme court has carefully limited.

If the interviews go forward and lead to an order granting new trial, then the plaintiff can appeal that order. That makes the harm quite “reparable not irreparable,” according to the court. Because the plaintiff did not show irreparable harm to himself, and because the court could not base its jurisdiction on the harm to the sanctity of jury deliberations, it dismissed the petition. It did however, certify conflict with those decisions involving certiorari petitions which deal with juror interviews (noting that none of them mentioned the irreparable harm component).

TRIAL COURT PROPERLY DENIED NURSING HOME’S MOTION TO COMPEL ARBITRATION-EVIDENCE WAS INSUFFICIENT TO SHOW THAT THE PARTY WHO EXECUTED THE AGREEMENT WAS ACTING AS THE RESIDENT’S AGENT OR HAD AUTHORITY TO EXECUTE THE AGREEMENT ON HIS BEHALF.

Palm Garden of Healthcare v. Haydu, 42 Fla. L. Weekly D215 (Fla. 5th DCA January 20, 2017):

In this case, the plaintiff acknowledged that she had signed the agreement that contained the arbitration clause, but testified she only did so after a telephone conversation with someone from the nursing home who advised that the agreement would be left in the decedent’s room and needed to be executed in order for him to continue receiving his medication and treatment. When the woman testified that she advised the person that she had no power of attorney or authority to execute the agreement, the nursing home representative said he would have explained the admissions agreement to both the resident and the woman and that the resident had given verbal consent for her to sign on the resident’s behalf.

There was also conflicting evidence suggesting that the representative was acting as the resident’s agent when she signed the admissions agreement. Thus, there was sufficient record evidence to support the court’s express finding that no binding agreement to arbitrate existed.

NEW TRIAL REQUIRED BASED ON EVIDENTIARY ERRORS IN MEDICAL MALPRACTICE CASE.

Doctors Co. v. Plummer, 42 Fla. L. Weekly D216 (Fla. 5th DCA January 20, 2017):

The plaintiff visited a family clinic complaining of ear pain. The doctor gave him two prescriptions for antibiotics and told him to follow-up in two weeks. At that time, the decedent complained of chronic ear problems that had now been persisting for one month. During the visit, the decedent’s chart failed to reflect that any ear exam took place. Although not reflected in the chart, the doctor later testified it would usually be within his standard of care to check the ears. The doctor then recommended a steroid with instructions to follow-up in a month.

When the decedent followed-up, he complained of intense right ear pain which an exam revealed a bulging membrane. The doctor noted no redness, no puss in the ear canal or discharge. The next morning, the decedent visited an ear, nose and throat practice where he was seen by a physician assistant and complained of a history of a clogged right ear with muffled hearing. Puss was noted and fluid, as well as redness. The day after that, an ENT surgically placed a tube in his ear to relieve the fluid buildup and then believed that the ear infection had progressed into a brain infection. The decedent sadly passed away several days later.

Before trial, the plaintiff failed to disclose to one of the defendant’s attorneys her intent to present evidence that the family doctor’s decision to provide Levaquin to the decedent constituted a breach of the duty of care. Plaintiff had filed a motion in limine to preclude the doctor from presenting any evidence that the Levaquin would have cured or eliminated the infection, arguing that the introduction of such evidence would constitute prejudicial undisclosed expert testimony.

Then during opening, plaintiff’s attorney advised the jury that Levaquin was not an FDA-approved drug for the treatment of ear infections, and the doctor should not have given samples. Over objection, plaintiff had two standard of care experts testify regarding that breach.

On appeal, the doctor argued she was unduly prejudiced by this argument and the evidence, and the Fifth District agreed. This was surprise testimony according to the court, and the doctor was denied the opportunity to conduct discovery on whether the decedent had actually used the Levaquin, the amount, etc.

The trial court’s error was compounded by permitting the insert of the Levaquin to be admitted into evidence. Even though section 90.706 permits statements or facts of opinion on a subject of specialized knowledge contained in a learned treatise or pamphlet to be used in cross-examination of an expert, it does not permit those statements to be used as substantive evidence.

While other courts have concluded that although a prescription drug package insert may have some significance in identifying a doctor’s standard of care, it cannot be used as stand-alone proof of the standard of care.

The trial court also erred in reversibly excluding the deposition testimony of the emergency room physician who made certain observations about the patient, arguably supporting the doctor’s theory of defense. The trial court erred in declining to find that the doctor was a skilled witness, and as such it was error for the trial court to preclude the doctor from using the deposition when the witness had not been subpoenaed.