The Week in Torts – Cases from the Week of January 6, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 1

CASES FROM THE WEEK OF JANUARY 6, 2017

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY DENYING MOTION TO DISMISS COMPLAINT FOR FAILURE TO COMPLY WITH MEDICAL MALPRACTICE PRESUIT REQUIREMENTS–CASE DID NOT CLEARLY ARISE OUT OF MALPRACTICE.

Pomper v. Ferraro, 42 Fla. L. Weekly D7 (Fla. 4^th DCA December 21, 2016):

A 99-year old woman was diagnosed with skin cancer on her shin, and her physician prescribed radiation for her at Horizon Medical Services.

On each occasion of the radiation, an employee of Horizon would come to the lobby of the plaintiff’s residence (an assisted living facility) and direct that she get into a wheelchair. The employee would then wheel her approximately one-hundred yards to the south side of the residence, where an automatic lift would hoist her wheelchair onto the mobile radiation van where the treatment was given.

On the day of the fall, the usual employee was not there. A different employee had Mrs. Ferraro walk to the mobile radiation van herself. The employee led her directly over a parking bumper without advising or warning of its existence, or supporting her. The plaintiff tripped and fell, and suffered severe and permanent injuries.

Section 766.106(1)(a) defines a claim for medical negligence or medical malpractice as “a claim arising out of the rendering of, or failure to render, medical care services.” When a wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill, it is subject to Chapter 766 presuit requirements. However, not every wrongful act by a healthcare provider or its employee amounts to medical malpractice.

The complaint’s allegations govern the analysis of whether the plaintiff must rely on the medical negligence standard of care as defined in the statute to prevail. Here, the complaint alleged that the plaintiff had tripped on a parking bumper while being led by the employee and instructed to walk. Those allegations sounded in negligence.

However, the complaint also included additional allegations suggesting that moving the plaintiff from her lobby to the van was directly associated with the treatment, similar to a situation where a patient is wheeled from a patient room in the hospital to the surgical unit.

The Fourth District determined that the facts alleged in the complaint did not support a theory that an injury occurred while there was a medical diagnostic or medical treatment procedure occurring. While arguably one can conclude that the complaint alleged that pre-treatment medical care was being provided to the plaintiff in transporting her to the mobile radiation van, the defendant did not argue or establish in the record that there is a professional standard of care applicable to assisting a patient with transportation to a mobile radiation van.

The court denied the petition without prejudice to raise the issue of non-compliance with section 766.102 if a revised complaint or discovery more clearly ended up demonstrating that the plaintiff could not prove her case without establishing a violation of a professional standard of care.

NO ERROR IN DENYING MOTION FOR DISQUALIFICATION MADE BASED ON A GRATUITOUS AND IMPROPER COMMENT BY THE JUDGE ABOUT ITALIAN AMERICANS.

Pugliese v. Deluca, 42 Fla. L. Weekly D5 (Fla. 4^th DCA December 21, 2016):

One man’s attorney was describing to the court the players in the case, and described another man who was deemed to be plaintiff’s “right-hand man.” The judge off-handedly stated:

There are so many “right-hand” men with our Italian folks here. So you got San Giacomo and he is whose right-hand man?

The court agreed with Mr. Pugliese’s assertions that the comment was both unnecessary and improper. However, it still concluded that the comment did not render the motion for disqualification legally insufficient.

The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality. In order to decide whether a motion is legally sufficient, a determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Because the judge’s comments did not put his impartiality into question, the Fourth District denied the writ of prohibition.

DISMISSAL ORDER WAS NOT VOID DUE TO THE FACT THAT PLAINTIFF’S COUNSEL NEVER RECEIVED A COPY–PLAINTIFF DID RECEIVE NOTICE OF HEARING ON THE MOTION TO DISMISS, BUT CHOSE NOT TO ATTEND.

Renovaship, Inc. v. Quatremain, 42 Fla. L. Weekly D21 (Fla. 3^rd DCA December 21, 2016):

In this case, the trial court erred in vacating an order dismissing for lack of prosecution (no jurisdiction), because the party filed the motion to vacate more than one year after the dismissal order was rendered. The dismissal order in this case was not void, because even though the plaintiff’s counsel never received a copy of the order, counsel did receive notice of the hearing on the motion to dismiss but failed to attend.

Because there was no denial of due process (because the attorney received notice of the hearing), the trial court was without continuing jurisdiction to vacate the prior dismissal order and reinstate the action.

NO ABUSE OF DISCRETION BY GRANTING DEFENDANT’S MOTION TO TRANSFER VENUE BASED ON FORUM NON CONVENIENS.

Theobald v. Piper Aircraft, 42 Fla. L. Weekly D52 (Fla. 3^rd DCA December 21, 2016):

The Plaintiffs filed a wrongful death lawsuit in Miami-Dade County over a plane crash that occurred in New York. The flight originated in Massachusetts, and the decedents and survivors all living outside of Florida. Piper, which designed and manufactured the aircraft in Vero, is based in Indian River County.

Pursuant to section 47.122, a court may transfer a civil action for the convenience of the parties, for the convenience of witnesses or in the interest of justice. The decision to transfer venue is one within the sound discretion of the court and to successfully challenge a ruling, there must be an abuse of discretion shown.

Here, the plane was manufactured in Vero (located in Indian River County) and none of the parties, decedents or witnesses were residents of Miami-Dade County. The airplane crashed in New York and co-defendants were all in Texas. The court observed that Miami-Dade had absolutely no connection with the lawsuit.

Also, Piper submitted affidavits articulating the convenience of litigating the case in Indian River County, where the aircraft was manufactured, where the witnesses resided and where relevant documents were located.

Not only did the court find there was no abuse of discretion, it found it probably would have been an abuse not to transfer the case.

EVEN IN A NURSING HOME CASE, IT IS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO GRANT LEAVE TO AMEND TO ADD A CLAIM FOR PUNTIVE DAMAGES WITHOUT HOLDING A HEARING.

WG Evergreen Woods SH, LLC v. Fares, 42 Fla. L. Weekly D66 (Fla. 5^th DCA December 30, 2016):

Section 429.297 provides a statutory framework for punitive damages against assisted living facilities. That statute, like the more general punitive damage statute, section 768.72(1) provides that no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for such damages (section 429.297(1)).

In 2003, rule 1.190 was amended to include subsection (f) which established the procedures to be followed in moving to amend to assert a claim for punitive damages. The rule does not contain any exceptions that permit punitive damage amendments in the absence of a hearing.

In this case, the failure of the trial court to conduct an evidentiary hearing before granting leave to amend to assert a claim for punitive damages was a departure from the essential requirements of law and a denial of due process rights.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ENTERING A PROTECTIVE ORDER PREVENTING PLAINTIFFS FROM TAKING THE DEPOSITION OF THE DEFENDANT IN A MEDICAL MALPRACTICE CASE, ON THE BASIS THAT THE DEFENDANT HAD PREVIOUSLY BEEN DEPOSED AS A FACT WITNESS IN A SEPARATE LAWSUIT AGAINST DIFFERENT DEFENDANTS BUT CONCERNING THE SAME UNDERLYING INCIDENT.

Shindorf v. Bell, 42 Fla. L. Weekly D70 (Fla. 2^nd DCA December 28, 2016):

An order that deprives a party in a civil proceeding of the ability to depose a material witness satisfies the jurisdictional requisites for certiorari review.

In this case, the witness did not seriously dispute the plaintiffs’ right to take his deposition, but simply questioned the need for a “second” deposition concerning his involvement with the plaintiff’s medical procedure. The witness claimed there were many ways the plaintiffs could have used his prior deposition from the different related lawsuit, that would alleviate any harm.

The court noted that the ruling undermined a fundamental tenant of civil discovery practice–to ascertain the strengths of a witness or of an adversary’s pleaded claims or defenses.

Absent a strong showing of good cause, the plaintiffs had the right to take the defendant’s deposition in their own lawsuit.

SERVICE ON FOREIGN DEFENDANT UNDER HAGUE CONVENTION REQUIRES A SUMMONS, EVEN WHERE THE PLAINTIFF PURPORTS TO EFFECTUATE SERVICE UNDER THE CONVENTION.

Ingenieria v. Freytech, 42 Fla. L. Weekly D79 (Fla. 3^rd DCA December 28, 2016):

The defendant moved to quash service. Because the court agreed that service of a summons is still required even when the plaintiff purports to effectuate service under Article 10(a) of the Hague Convention, the court reversed.

In Florida, the law strictly construes and requires compliance with statutes governing service of process. While the Hague Convention is mandatory in all cases to which it applies, and preempts inconsistent methods of service prescribed by state law, there is nothing in Article 10(a) or in the Hague Convention in general, which provides that the plaintiff’s service of a summons when effectuating service of process on a defendant, is not required or has been expressly preempted by the Convention.

TRIAL COURT ABUSED DISCRETION IN DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT BEFORE ENTERING SUMMARY JUDGMENT, WHERE ALLOWING AMENDMENT WOULD NOT PREJUDICE DEFENDANT AND THERE HAD BEEN NO PRIOR REQUESTS TO AMEND, AND THE AMENDMENT WOULD NOT HAVE BEEN FUTILE.

Saidi v. Saqr, 42 Fla. L. Weekly D86 (Fla. 5^th DCA December 30, 2016).