FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 17

CASES FROM THE WEEK OF APRIL 27, 2018

ERROR TO ADMIT INTO EVIDENCE, SUBSEQUENT TREATING PHYSICIAN’S DEPOSITION WHERE HE TESTIFIED HOW HE WOULD HAVE TREATED PATIENT HAD SHE BEEN TRANSFERRED EARLIER--ERROR NOT HARMLESS.

Cantore v. West Boca Medical Center, 43 Fla. L. Weekly S188 (Fla. April 26, 2018):

In this tragic case, a child who had previously been diagnosed with hydrocephalus, was showing symptoms of it again two years later, precipitating a visit to West Boca Medical Center. The evidence demonstrated that the treatment at West Boca Medical Center was not expeditious enough, and by the time the child had been airlifted to Miami Children’s Hospital where she had an emergency ventriculostomy, her life was saved, but she suffered severe and permanent brain damage.

One of the witnesses for WBMC, a pediatric neurosurgeon at Miami Children’s was asked hypothetical questions about how he would have treated the child had she arrived an hour or two earlier. The doctor testified that based on his understanding of the child’s condition before she herniated, if she had come under his care prior to the herniation he would have also performed an emergency ventriculostomy but the same result would have occurred.

The case resulted in a defense verdict. The Fourth District had affirmed based on the supreme court’s decision in Saunders v. Dickens, 151 So.3d 434 (Fla. 2014).

The supreme court reversed. It held that the testimony of the subsequent treating physician was in actuality prohibited by its own decision in Saunders. In Saunders, the court had held that testimony that a subsequent treating physician would not have treated the plaintiff patient differently had the defendant physician acted within the applicable standard of care, was irrelevant and inadmissible and could not insulate a defendant physician from liability for his or her own negligence.

The supreme court reminded us that the question of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician defendant, and subsequent treating physicians may not simply testify that they would break the chain of causation between an earlier treating physician and the result.

By accepting testimony from the subsequent treating physician, the long established reasonably prudent physician standard where the “specific conduct of an individual doctor under a specific circumstance” is evaluated, would be altered, and would place the burden on the plaintiff to prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis contrary to the testimony and irrespective of the standard of care for the actual defendant physician.

The court found it was error to allow the deposition of this subsequent treating physician with these hypothetical questions to be read, and that the error was not harmless. The court reversed for a new trial.

MEDICAL MALPRACTICE VERSUS ORDINARY NEGLIGENCE - AGE OLD QUESTION.

The National Deaf Academy v. Townes, 43 Fla. L. Weekly S193 (Fla. April 26, 2018):

A person diagnosed with bipolar disorder and intermittent explosive disorder among other things, was enrolled in the National Deaf Academy which is both a school and a residential treatment facility. A National Deaf Academy psychiatrist established the treatment plan for the patient which involved staff members physically restraining her with a certain hold. Prior to employing that technique, the most senior employee on the scene is required to make a determination whether it is necessary to control the resident.

One day, a nurse noticed that the patient left the campus. When she returned she was throwing rocks, and was pulling on cables and wires and lightning rods, trying to dislodge them. In the staff’s attempts to restrain the patient, she fell and injured her knee which resulted in an above the knee amputation.

The plaintiff sued alleging claims of ordinary negligence against the defendant. The incident had involved two registered nurses and others.

The defendant moved for summary judgment based on the plaintiff’s failure to comply with presuit and the running of the statute of limitations.

The supreme court reversed. It held that for a claim to sound in medical malpractice, the act from which the claim arose must be directly related to medical care or services, which require the use of professional judgment or skill.

In this case, the defendant asserted that the plaintiff’s claim sounded in medical malpractice because the decision to include a specific kind of hold (a TACT hold) in the plaintiff’s plan of care was made by a medical doctor and medical expert testimony, thereby requiring proof of the prevailing professional standard of care. The supreme court disagreed.

As the purpose of the TACT (or any protective hold) is to ensure the safety of residents, the fact that the plaintiff care was made by a medical doctor did not automatically transform the claim into one for medical malpractice. The hold itself did not require medical skill or judgment, as non-medical staff were taught the procedure and authorized to decide whether to employ it.

The gravamen of the plaintiff’s complaint was that the defendant by and through its employs, negligently administered the hold that led to the plaintiff’s injuries. Proving that claim would not require testimony from a medical expert about the professional standard of care. Therefore, because the plaintiff’s claim did not arise out of an act directly related to medical care or services requiring professional judgment or skill, the claim did not sound in medical malpractice, rather, it was ordinary negligence.

THE PRIVATE CAUSE OF ACTION CONTAINED IN SECTION 376.313(3) DID NOT PERMIT RECOVERY FOR “PERSONAL INJURY” WHEN A TOW TRUCK DRIVER WAS INJURED AFTER COMING INTO CONTACT WITH BATTERY ACID THAT SPILLED ONTO THE HIGHWAY AFTER AN ACCIDENT.

Simon’s Trucking Co. v. Lieupo, 43 Fla. L. Weekly D805 (Fla. 1st DCA April 18, 2018):

The plaintiff sued a trucking company alleging strict liability for the injuries he had suffered after one of the defendant’s tractor trailers was involved in an accident while transporting batteries, and that spilled battery acid onto the highway. The plaintiff sued under section 376.313(3), Fla. Stat. which imposes strict liability for the discharge of certain types of pollutants.

The defendant argued that the plaintiff could not seek recovery under that statute because it did not permit recovery for “personal injury.” The trial judge rejected that argument and the jury ended up awarding the man over $5.2 million in damages.

After analyzing chapter 376 regulating the discharge and removal of certain pollutants, and noting that the act allows actions for damages which include the loss of real or personal property or the destruction of the environment or resources, the court held that the statute did not allow for the recovery of personal injuries, as maintained. The court reversed, but still certified the question as one of great public importance.

ORDER MERELY “DENYING” AGENCY’S MOTION FOR SOVEREIGN IMMUNITY, WITHOUT EXPLICITLY DETERMINING ON ITS FACE THAT THE AGENCY WAS NOT ENTITLED TO IMMUNITY AS A MATTER OF LAW IS NOT APPEALABLE--COURT CERTIFIED THE QUESTION ABOUT THE APPLICABILITY OF RULE 9.130.

Florida Agency for Health Care Administration v. McClain, 43 Fla. L. Weekly D810 (Fla. 1st DCA April 18, 2018):

On the record, while it appeared that the lower tribunal determined that there was no entitlement to sovereign immunity as a matter of law, the trial court’s order simply denied the defendant’s motion to dismiss, without determining on its face that defendant was not entitled to immunity.

Pursuant to rule 9.130(a)(3)(C)(xi), a party may appeal a non-final order which determines “as a matter of law” that a party is not entitled to sovereign immunity. In this case, because the court simply wrote that the motion to dismiss was denied, and did not explicitly find that the defendant was not entitled to sovereign immunity, the court found it had no jurisdiction to review it. However, it did certify to the supreme court as a question of great public importance, whether rule 9.130 permits an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law, but the trial court did not explicitly find that to be the case in its order.

COURT RULES THAT DENIAL OF DEFENDANT’S MOTION TO TRANSFER VENUE BASED ON CONVENIENCE WAS NOT AN ABUSE OF DISCRETION.

Marques v. Garcia, 43 Fla. L. Weekly D824 (Fla. 3rd DCA April 18, 2018):

Parents took their six-day-old infant to a hospital in Naples. He had developed a serious intestinal condition that caused him to vomit green bile. The ER physician there discharged the child in less than two hours. When his symptoms persisted, the parents went to a pediatrician in Naples, who referred them to a local specialist. They had to take the child back to the ER where he was again seen by one of the defendants, diagnosed with colic and discharged.

Ultimately, these doctors ordered an x-ray which revealed that the child suffered from a volvulus, which is a twisting of the intestine. He was airlifted to Joe DiMaggio Hospital in Broward County for treatment, and after five surgeries and two and a half months of treatment, recovered.

The plaintiffs filed a medical malpractice action in Miami-Dade County against Naples HMA, and the various doctors and their practices. The three individual defendants reside and work in Collier County, but of the four corporate defendants, one had its principal place of business in Miami-Dade.

Almost all of the defendants filed motions to transfer venue to Collier County pursuant to section 47.122. The three doctors filed affidavits in support of their motions asserting that they lived and worked in Naples and that their professional and personal lives would be unduly burdened by a trial in Miami-Dade County. However, none of the doctors’ affidavits addressed or established “substantial inconvenience” or “undue expense” that would require a change of venue for the convenience of the anticipated witnesses (as the statute requires).

The court began its analysis by noting the venue was proper in both Miami-Dade and Collier Counties, and when that is the case, the choice of forum rests with the plaintiff.

Section 47.122, however, authorizes a court to transfer any civil action to another court where the case may have been brought either “for the convenience of the parties or witnesses,” or “in the interest of justice.” Of these three statutory factors, the most important factor is the convenience of the witnesses.

Here, the defendants failed to establish the identity of any key or material witnesses and did not submit any record evidence to meet the burden. Because the defendants failed to show which of the witnesses were key witnesses or material witnesses, and further failed to show substantial inconvenience or undue expense which required a change of venue for the convenience of those witnesses, the trial court did not abuse its discretion in denying the motions to transfer.

DEFENDANT WHO LACKED ANY CONTROL OVER A COMMON AREA OF A PARK WHERE THE PLAINTIFF WAS INJURED HAD NO DUTY TO PROVIDE ADEQUATE SECURITY THERE--TRIAL COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION FOR DIRECTED VERDICT.

Competitive Softball Promotions v. Ayub, 43 Fla. L. Weekly D833 (Fla. 3rd DCA April 18, 2018):

A person playing on a softball team was involved in a heated altercation between his team and the opponent’s team during a softball tournament run by Competitive Softball Promotions (CSP) in a Miami County park. Later, a second altercation broke out in a common area of the park outside of the rented softball fields and dugouts, and the plaintiff was injured. Plaintiff filed a lawsuit against CSP, which responded that it had no duty to provide security in the common area of the public park.

Unless a plaintiff can demonstrate that a defendant controlled the premises where the plaintiff was injured, a defendant cannot be liable for failing to protect the plaintiff from third-party misconduct. Control over such premises is demonstrated where the defendant is shown to have the right to control access to the property.

In this case, there was no evidence to suggest that CSP exercised any control over the premises where the plaintiff was injured, because CSP only rented the softball fields adjacent to the common area. While plaintiff suggested that there was evidence that CSP used the common areas of the public park to collect fees from members of the softball teams and posted tournament results in the common area, the limited use to a common area does not demonstrate the type of control necessary to give rise to a duty to provide adequate security against third-party misconduct.

While a duty can arise where a defendant’s conduct creates conditions that cause injuries to invitees that occur beyond the limits of the premises within the defendant’s control, that was not the case here. The trial court erred in failing to direct a verdict for the defendant CSP in this case.

WHERE AFFIDAVITS FILED BY BOTH SIDES CREATE CONFLICT IN THE EVIDENCE AS TO JURISDICTION OVER NON-RESIDENTS, THE TRIAL COURT MUST CONDUCT AN EVIDENTIARY HEARING.

Dickinson Wright v. Third Reef Holdings, 43 Fla. L. Weekly S843 (Fla. 4 th DCA April 18, 2018).