FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 51

CASES FROM THE WEEK OF DECEMBER 21, 2018

ERROR TO GRANT DIRECTED VERDICT FOR DEFENDANT ANESTHESIOLOGIST, WHERE THERE WAS EVIDENCE TO PERMIT A REASONABLE FACT FINDER TO CONCLUDE THE PHYSICIAN WAS NEGLIGENT.

Ruiz v. Tenet Hialeah Healthsystem, 43 Fla. L. Weekly S655 (Fla. December 20, 2018):

After the plaintiff’s wife died during surgery, her husband brought a medical malpractice action against several of her treating physicians and a hospital.

The plaintiff’s late wife had noticed a large mass on the back of her head which was ultimately diagnosed by a neurosurgeon (without a biopsy) as an osteosarcoma. Imaging studies showed it had invaded the decedent’s skull, and could be pressing upon her brain. The neurosurgeon recommended immediate surgery.

The decedent agreed to the surgery, and had her pre-surgery exam and lab work done. The EKG result was flagged as abnormal.

On the morning of the surgery, the anesthesiologist was running late, and another anesthesiologist agreed to perform the pre-anesthesia evaluation. That doctor reviewed some of the test results in the chart (but not all of them), but believed any abnormality was caused by a malfunction of the EKG machine. He also did not see the abnormal urinalysis results.

The anesthesiologist did not inform the surgeons of the abnormal test results and signed off to clear the decedent for surgery.

During surgery, the decedent lost a large amount of blood, suffered a significant drop in blood pressure and died after cardiac arrest. The autopsy revealed that rather than being an osteosarcoma, the woman’s tumor was actually a multiple myeloma; a kind of cancer that is treated only through radiation and chemotherapy, not surgery.

The trial judge had granted a directed verdict in favor of the anesthesiologist, holding that even assuming he was negligent, he did nothing more than place the decedent in a position to be injured by the independent actions of a third party. Because the trial court concluded that no evidence would allow a reasonable fact finder to conclude that the anesthesiologist was the “primary cause” of the death, the court granted the directed verdict.

The Florida Supreme Court reviewed the District Court’s affirmance. It wrote, directed verdicts can only be affirmed where no proper view of the evidence can sustain a verdict in favor of the non-moving party. Also, in proving causation in Florida, we use the “more likely than not” standard, meaning only that the negligence “probably caused” the plaintiff’s injury.

Medical malpractice jurisprudence makes clear that a physician may be the proximate cause of a patient’s injury, even if that physician is not the primary cause of the injury. Under these facts, the anesthesiologist had to show there was no competent substantial evidence in the record to permit a reasonable fact finder to conclude he was negligent. Because the trial court did not go through that analysis, the supreme court quashed the Third District’s decision, and remanded it to consider the record in light of the proper standard.

FLORIDA SUPREME COURT DECLARES LEE MEMORIAL HEALTH SYSTEM’S LIEN LAW UNCONSTITUTIONAL.

Lee Memorial Health System v. Progressive Select Insurance Co., 43 Fla. L. Weekly S661 (Fla. December 20, 2018):

The Lee Memorial Health System lien law entitles the hospital to liens for charges for health care services, defines what actions constitute impairment of those liens, and creates a cause of action to recover damages against others for impairment of those liens by others including persons, firms or corporations, who are neither the providers nor the beneficiaries of the health care services at issue.

This lawsuit arose out of a challenge to the law made by Progressive for the impairment of two liens that Lee Memorial had filed based on the provision of medical treatment to an injured person. Lee Memorial alleged that Progressive impaired the liens by settling a claim with the injured person on behalf of Progressive’s insured, without the knowledge or consent of Lee Memorial and without the satisfaction or release of the hospital’s liens.

Progressive argued that the lien law was unconstitutional as a special law, in violation of Article III, § 11(a)(9) of the Florida Constitution. Progressive made other arguments regarding unconstitutionality, but because it did not apprise the attorney general pursuant to rule 1.071, the trial court was barred from considering the issue that could result in the striking of a state statute as unconstitutional.

The court affirmed the Second District’s ruling that the law was unconstitutional under a special law, Article III, § 11(a)(9), but did not consider the other bases (namely Article I, § 10, which violates the constitutional prohibition against the impairment of contracts). Article III, § 11(a)(9) states there should be no special law or general law of local application that pertains to the creation, enforcement, extension or impairment of liens based on private contracts.

ERROR IN DISMISSING CASE WITH PREJUDICE FOR FAILURE TO MENTION TWO CONSOLIDATED CASE NUMBERS, WHEN THERE WAS NO EVIDENCE OF WILLFUL NONCOMPLIANCE OR DELIBERATE DISREGARD OF A COURT ORDER.

Vento v. Balboa Insurance Co., 43 Fla. L. Weekly D2740 (Fla. 4th DCA December 12, 2018):

The trial court dismissed the plaintiff’s complaint, because plaintiff failed to comply with a previous court order requiring him to file a second amended complaint with a caption containing both case numbers in two consolidated cases.

Doing a Kozel analysis, the Fourth District ruled that the trial court did not consider the factors or make the hearsay findings as to willfulness, and thus, ruled that the ultimate sanction of dismissal with prejudice on these facts constituted an abuse of discretion.

DEFENSE VERDICT ON HABITUAL DRUNKARD EXCEPTION TO DRAM SHOP ACT AFFIRMED--DENIAL OF ATTORNEY’S FEES FOR DEFENDANT BECAUSE OFFER NOT MADE IN “GOOD FAITH,” ALSO AFFIRMED.

Hayes Robertson Group v. Cherry, 43 Fla. L. Weekly D2752 (Fla. 3rd DCA December 12, 2018):

A man who worked for a restaurant in Key West finished his shift at the restaurant, came back about two hours later, had several drinks at the bar and then severely injured three people and killed a fourth. By all accounts, by the time the man prepared to leave the restaurant he was intoxicated, and three hours after the crash, his blood alcohol level was 0.173, more than twice the legal limit.

The plaintiffs sued the restaurant based on two theories: (1) liability of an employer for allowing employees to leave the business premises intoxicated (See, Carol Air Systems v. Greenbaum, 629 So.2d 914 (Fla. 1993)) and (2) the exception to Florida’s Dram Shop Act, § 768.125 which permits a claim of liability against one who knowingly serves a person habitually addicted to the use of any alcoholic beverages, for injury or damage caused by or resulting from the intoxication.

The trial court had refused to allow one of the plaintiff’s experts to testify regarding the defendant being habitually addicted to alcoholic beverages, finding that he was not a medical doctor, and lacked the experience and qualifications to so opine.

Ultimately, the jury found that the restaurant was not negligent in allowing the employee to leave in an intoxicated condition before the accident, nor did it find that the restaurant knowingly serve alcoholic beverages to a person habitually addicted to the use of such beverages.

The court found the trial judge correctly ruled to limit the expert’s testimony, because the record supported the expert’s lack of qualifications and experience. The jury heard circumstantial evidence of the employee’s consumption of alcoholic beverages, his work record, his conception of other drugs, but still concluded upon reading the statutory directive, that the restaurant was not negligent by serving the employee when the restaurant knew or should have known he was habitually addicted to the use of alcoholic beverages. The jury found that the restaurant had not knowingly served alcohol to a person habitually addicted, and the interrogatory verdict had simply asked one question about whether the employee was habitually addicted to alcohol, and if so, whether the restaurant knew or should have known that, and served him anyway.

Perhaps more helpfully, this case also involved the trial court’s refusal to enforce the defendant’s proposals for settlement which had been made in both the amounts of $500 per plaintiff, and $100 per plaintiff.

The trial court noted that there was substantial evidence admitted as to both claims that plaintiffs were making, that summary judgment had been denied because there were issues of fact on both points, and that the offers of $500 and $100 did not bear a reasonable relationship to the damages claimed as a result of the “automobile versus motorcycle” crash that injured the plaintiffs.

The court found that each time an offer was made, the claims against the restaurant did have merit, and that the restaurant faced at least some exposure. This led the court to conclude that the nominal offers were not made in good faith, which the Third District affirmed.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IS NOT APPEALABLE WHERE IT DOES NOT CONTAIN LANGUAGE THAT ENTERS JUDGMENT--WHEN COUNTS ARE INEXTRICABLY INTERTWINED WITH COUNTERCLAIMS THE ORDER IS ALSO NOT APPEALABLE.

Libman v. Florida Wellness and Rehabilitation Center, 43 Fla. L. Weekly D2760 (Fla. 3rd DCA December 12, 2018).

IF A TRIAL COURT ORDERS PRODUCTION UNDER AMENDMENT 7 OF DOCUMENTS ALLEGED TO BE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, TRIAL COURT MUST MAKE SPECIFIC FACTUAL FINDINGS AS TO WHY THE PRIVILEGE DOES NOT APPLY.

The Nemours Foundation v. Arroyo, 43 Fla. L. Weekly D2767 (Fla. 5th DCA December 14, 2018):

Plaintiffs sought the production of “Amendment 7 records,” and the defendant argued that the documents at issue contained written statements provided by five separate employees of the defendant, to its in-house counsel. The trial court found these documents to be “fact work product,” and noted that they did not fall “under attorney-client privilege.”

The issue framed for the court’s consideration was whether written communications that may fall within the ambit of the attorney-client privilege are nevertheless discoverable under Amendment 7, if they contain information relating to an adverse medical incident. As the Fifth District noted, neither the Florida Supreme Court nor the district courts have squarely addressed this issue.

The court then analyzed the documents in question, noting that they were prepared by the defendant’s employees at the specific behest of its in-house counsel, to assist counsel in providing his legal analysis of the issues involved in the claims. The court looked at the documents according to the five-prong criteria established by the supreme court in Southern Bell Telephone and Telegraph v. Deason, 632 So.2d 1377 (Fla. 1994) for testing whether a communication by employees of a corporation to a corporate counsel is protected by the attorney-client privilege. The five factors to be considered are:

(1) The communication would not have been made but for the contemplation of legal services;

(2) The employee making the communication did so at the direction of his or her corporate superior;

(3) The superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;

(4) The content of the communication relates to legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties; and

(5) The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

The defendant argued that its in-house counsel’s amended affidavit tracked the factors as set forth in Southern Bell, and met its burden of showing that the documents were protected by the privilege.

Because the trial court did not actually address why, in light of the defendant’s in-house counsel’s affidavit, the documents were not protected by the attorney-client privilege, the order lacked the requisite specificity needed to support the production, causing the Fifth District to quash the order without prejudice. It remanded for the trial court to make the findings.

Additionally, the court ordered that if the trial judge concludes that the documents are attorney-client privileged communications, it must then separately decide whether under Amendment 7 they are still to be disclosed.

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT IS NOT AN APPEALABLE ORDER--TO THE EXTENT REVIEW IS SOUGHT OF THE UNDERLYING ORDER OF DISMISSAL, THE TIME FOR THE APPEAL RUNS FROM THE DATE OF THAT ORDER.

Faison v. State of Florida, 43 Fla. L. Weekly D2784 (Fla. 1st DCA December 14, 2018).

FIRST DISTRICT REVERSES TRIAL COURT’S DECISION TO GRANT PLAINTIFF NEW TRIAL BASED ON CROSS-EXAMINATION QUESTION OF PLAINTIFF.

Little v. Davis, 43 Fla. L. Weekly D2792 (Fla. 1st DCA December 14, 2018):

In this low impact rear-end collision, the plaintiff did not initially complain of any injuries, but nine days later asserted that she had pain in her left arm, and eight months after that filed suit alleging permanent injuries related to the accident. The defendant admitted negligence, but argued that the injuries were not caused by the accident.

On cross, defense counsel asked the plaintiff if her arm was still injured, then why did her boyfriend who she lived with for three years, testify that she stopped complaining to him about the problems with her left arm. Counsel also asked whether the boyfriend would make anything up for her. The trial court sustained the objection but plaintiff did not move for a mistrial, nor ask for a curative instruction.

The trial court then granted the plaintiff’s motion for new trial finding that the question was highly prejudicial and that the jury was misled by the testimony, based on those questions.

The First District began with the presumption that trial courts have wide discretion to grant new trials, and appellate courts will not disturb trial courts’ rulings absent a clear abuse of that discretion. The court also noted how trial judges’ decisions to grant new trials are given even greater deference than decisions to deny new trials.

Still, the court found the objection to the instance of attorney misconduct could only be preserved by timely moving for a mistrial. Here, while plaintiff’s counsel objected to the defense attorney’s question regarding the boyfriend and the trial judge sustained it, plaintiff never sought a curative instruction nor move for a mistrial.

This led to an analysis for fundamental error under the Murphy case. The court found that the comment did not demonstrate the improper conduct, harmfulness, in curability and a consideration of the public’s faith in the justice system that Murphy requires.

Even if the trial court had applied the Murphy analysis (which it did not), the First District concluded that the test could not be met on the record anyway. The court reversed and remanded for entry of judgment in accordance with the jury’s verdict (for the plaintiff, but with a finding of no permanency and no award for pain and suffering).