The Week in Torts – Cases from the Week of November 10, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 45

CASES FROM THE WEEK OF NOVEMBER 10, 2017

SUPREME COURT RULES THAT CERTAIN REQUIREMENTS FOR MEDICAL MALPRACTICE PRESUIT ARE UNCONSTITUTIONAL VIOLATIONS OF THE CONSTITUTIONAL RIGHT TO PRIVACY, AND VIOLATE ACCESS TO COURTS.

Weaver v. Myers, 42 Fla. L. Weekly S906 (Fla. November 9, 2017):

This case involved a constitutional challenge to the 2013 amendments to section 766.106 and 766.1065, generally pertaining to invasive presuit notice requirements and informal discovery processes that must be satisfied before a plaintiff can file a medical negligence action. The amendments at issue authorize secret, ex parte interviews as part of the informal discovery process.

In 2013, the legislature added several requirements to the presuit notice statutory requirements needed before allowing the filing of a medical malpractice claim. In that year, the legislature allowed secret ex parte interviews to the list of informal discovery devices to which a medical malpractice claimant seeking redress must consent. They added in section 766.106(6)(b)5. This amendment allowed prospective defendants and their lawyers to unilaterally and without notice, to schedule interviews with the claimant’s treating health care providers without any notice to the claimant whatsoever, and to conduct those interviews in secret.

The plaintiff raised the issue that the amendments related to this issue both unconstitutionally violated Florida’s right to privacy, and the right of access to courts. The Florida Supreme Court agreed.

Noting that the right to privacy in the Florida Constitution is “broader, more fundamental, and more highly guarded than any federal counterpart,” the Florida Supreme Court reiterated that the right of privacy ensures that individuals are able to determine for themselves when, how and to what extent information about them is communicated to others. The court also advised that the right to privacy survives a person’s death.

As the court concluded, “In sum, we hold today that the right to privacy in the Florida Constitution attaches during the life of a citizen, and is not retroactively destroyed by death.”

Because the constitutional protection operates in a specific context of shielding irrelevant, protected medical history and other private information from the medical malpractice litigation process–including in a wrongful death context–the right to privacy renders these amendments unconstitutional.

The court also found that the legislature unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice, on the claimant’s waiver of the constitutional right to privacy (in either the wrongful death or personal injury realm). As a result, the court struck the unconstitutional language from the 2013 amendments to section 766.106 and 766.1065.

COMPLAINT PROPERLY DISMISSED FOR FRAUD ON THE COURT WHERE CLEAR AND CONVINCING EVIDENCE SUPPORTED THAT PLAINTIFF OMITTED AND MISREPRESENTED MEDICAL HISTORY DURING DISCOVERY–TRIAL COURT ERRED IN DENYING AWARD OF ATTORNEY’S FEES WHERE A PROPOSAL FOR SETTLEMENT WAS NOT AMBIGUOUS–RELEASE LANGAUGE ATTACHED TO PROPOSAL FOR SETTLEMENT REGARDING LEGAL REPRESENTATIVES OF RELEASING PARTY, DID NOT RENDER THE PROPOSAL AMBIGUOUS.

Obregon v. Rosana Corp., 42 Fla. L. Weekly D2347 (Fla. 3^rd DCA November 1, 2017):

Plaintiff allegedly slipped and fell at a barbeque restaurant and filed a complaint three years later seeking damages for her injuries. The record reflected that although she had revealed some of her medical providers who had treated her prior to the 2012 slip and fall, she failed to disclose numerous health care providers who had treated her for injuries and pain directly related to injuries for which she was seeking damages.

During the plaintiff’s 2016 deposition, the restaurant defendant learned that plaintiff had medical insurance which had not been previously disclosed. It also learned that she had received treatment at a hospital and had been treated by two other doctors.

Plaintiff had omitted these health care providers from her responses to the slip and fall interrogatories. As a result of the information discovered during the deposition, the defendant restaurant subpoenaed records, and uncovered 16 additional treating facilities and health care providers that had not been disclosed by the plaintiff.

A review of the records showed that plaintiff had denied presenting for payment or receiving any payment from any insurance company or third party for damages flowing from the slip and fall at the restaurant which turned out not to be true. The records reflected numerous payments to many different health care providers, and also revealed that although the plaintiff had denied during her deposition that she had been diagnosed with a herniated disc, she had been diagnosed with one as early as 2009, confirmed as of 2010 and 2011.

Additionally, although the plaintiff denied being involved in auto accidents since 2008, the undisclosed records revealed she was involved in one in January of 2011 that resulted in injuries. She had filed a PIP claim for that accident and was treated 41 times by health care providers she never disclosed.

When the restaurant learned that the plaintiff was receiving social security disability benefits, the restaurant subpoenaed the non-privileged records of the attorney who represented her in conjunction with the disability claim, and discovered nine more physicians and facilities that had treated her. These records also revealed a pre-existing disc herniation documented by several treating physicians.

Defense counsel asked during her deposition what the basis for her disability claim was and whether it was related to the fall at the restaurant, and the plaintiff stated that her disability was a result of chronic migraines and fibromyalgia, and not at all related to the fall. However, the 2012 disability determination indicated that the primary diagnosis was for a back disorder and that her initial claim for disability was due to her back problems.

Without an evidentiary hearing, the trial court struck the plaintiff’s pleadings for fraud on the court.

The court still found the hearing was properly noticed, and found that the plaintiff was provided with an opportunity to be heard. However, she failed to present any counter-evidence, and did not object to the nature of the hearing or of the trial court rendering its ruling on the motion based on the evidence in the arguments presented. Thus, the issue of the form of the hearing was not preserved for appellate review.

The record also clearly reflected that the trial court’s order was supported by clear and convincing evidence. The plaintiff’s omission of her extensive medical history which if had gone undiscovered, would have certainly interfered with the jury’s ability to fairly adjudicate the issues, and this could not be chalked up to mere oversight or forgetfulness.

The trial court also should have awarded the defendant its attorney’s fees. The trial court had found that the language contained in the general release attached to the proposal for settlement was ambiguous because there was language stating that the plaintiff’s legal representatives being included as a releasing party rendered the proposal ambiguous. The Third District relied on the Fourth DCA’s decision in Board of Trustees v. Bowman, and concluded that the inclusion of the party’s legal representative and the definition of releasing parties did not render the proposal unenforceable. This was a type of general release, and though it was needlessly expansive, was still clear and unambiguous.

Although the court stated it did not go as far as to agree that the language of the general release was typical, it did agree that it was unambiguous and enforceable. The case did suggest that such overly expansive language could sometimes be ambiguous in the right circumstances however.

A CLERK’S DATE STAMP ON A DOCUMENT CREATES A REBUTTABLE PRESUMPTION BUT IS NOT CONCLUSIVE PROOF OF FILING DATE–ERROR TO GRANT SUMMARY JUDGMENT FOR DEFENDANTS ON THE GROUND THAT A COMPLAINT WAS NOT FILED TIMELY WHERE PLAINTIFF FILED EVIDENCE INDICATING WHERE THE RECEIPT ISSUED AND A CHECK PAID THAT IT WAS.

Mansfield v. R.J. Reynolds, 42 Fla. L. Weekly D2363 (Fla. 5^th DCA November 3, 2017).

ACTION ALLEGING THAT PHYSICIAN HAD REMOVED A STEP STOOL TO ALLOW THE PATIENT TO GET ONTO THE EXAMINATION TABLE AND RESULTED IN THE PLAINTIFF FALLING, SOUNDED IN ORDINARY NEGLIGENCE AND NOT MEDICAL MALPRACTICE.

Vance v. Okaloosa-Walton Urology, 42 Fla. L. Weekly D2372 (Fla. 1^st DCA November 16, 2017):

When the plaintiff visited the physician’s office, the doctor provided a step for her to use to ascend onto the examination table. He then removed the step while he performed his procedure. He did not replace the step.

After the doctor left and instructed the plaintiff to go to the front desk to schedule another appointment, she fell, thinking the step was there when it was not.

The trial court dismissed plaintiff’s complaint for failure to comply with presuit notice requirements, believing this case sounded in medical negligence. However, when evaluating whether a complaint sounds in ordinary negligence or medical negligence, courts must determine from the allegations whether the claim arises out of the rendering of or the failure to render medical care or services. The inquiry is whether the claim relies on the application of the medical malpractice standard of care.

The mere fact that a negligent act occurs in a medical setting does not make it medical negligence. Ordinary negligence is the kind that jurors can resolve by referring to common experience, whereas medical negligence requires the help of experts to establish what is acceptable, appropriate and prudent because jurors cannot determine through common experience whether medical standards of care were breached.

While there is no doubt that the line between ordinary and medical negligence may at times be difficult to draw, at the dismissal stage of this case, the court found that the plaintiff’s claim sounded in ordinary negligence, reversing and remanding for further proceedings.