Will an amendment for punis soon be reviewable before trial

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 12

CASES FROM THE WEEK March 27, 2020

PETITION FOR WRIT TO REVIEW ORDER GRANTING MOTION TO AMEND TO ADD CLAIM FOR PUNITIVE DAMAGES DENIED—CONCURRING OPINION SUGGESTING THAT RULES OF APPELLATE PROCEDURE BE AMENDED SO LITIGANTS CAN CHALLENGE THESE ORDERS AS NON-FINAL APPEALS.

E.R. Truck and Equipment Corp. v. Gomont, 45 Fla. L Weekly D599 (Fla. 3d DCA March 18, 2020):

The majority concluded that the trial judge complied with the procedural requirements of §768.72, and that the plaintiff had proffered enough evidence sufficient to support his punitive damages claim.

In a concurring opinion, Judge Scales advocated that Fla. R. App. Pro. 9.130(a)(3) should be amended to include orders granting motions to amend to add claims for punitive damages. The judge admonished that notwithstanding the “game-changing” nature of these orders allowing punitive damages, appellate courts are limited in their review, and urged that appellate courts should be allowed to review them de novo as non-final orders.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO DENY MOTION TO DISMISS WHEN PLAINTIFF FAILED TO PROVIDE CORROBORATING MEDICAL AFFIDAVIT IN MED MAL CASE-COURT REJECTED PLAINTIFF’S ARGUMENT THAT DEFENDANT’S FAILURE TO TIMELY RESPOND TO INFORMAL DISCOVERY WAIVED THE NEED FOR THE AFFIDAVIT UNDER THE FACTS OF THIS CASE.

Brundage v. Evans, 45 Fla. L Weekly D627 (Fla 2nd DCA March 18, 2020):

In this med mal case, the plaintiff filed a petition for an automatic extension to the statute of limitations pursuant to §766.104(2). Plaintiff also sent a written request to the hospital defendant in November 2014, seeking all medical records regarding the decedent. The hospital never responded to that request.

Plaintiff sent additional written requests in December and again in September 2015. In October of 2015, the hospital finally provided the plaintiff with a CD containing some but not all of the medical records. In February of 2016, plaintiff sent a notice of intent to initiate litigation, and in April of 2016, finally received all of the decedent’s medical records from the hospital.

In September of 2016, the plaintiff then served a notice of intent on the physician defendant, which stated that the physician had waived the requirement for a corroborating affidavit based on the hospital’s refusal to comply with the records request. In that notice, the plaintiff also sought additional discovery pursuant to §766.106(6) seeking informal discovery.

Plaintiff filed suit, and then obtained an expert opinion regarding the evidence of the physician’s negligence, but failed to provide it to the defendant physician. In November of 2016, counsel for the physician advised plaintiff that the notice of intent was deficient because it failed to include the expert opinion. The doctor had also responded to the informal discovery request, indicating that the doctor had no medical records.

The defendants (physician and his group) then moved to dismiss the complaint for failing to provide the expert opinion prior to the expiration of the statute of limitations. In August of 2017, at a hearing on the motion to dismiss, plaintiff’s counsel provided the expert opinion to the defendants stating that he was under the impression that the defendants did have the affidavit.

The trial court denied the motion to dismiss, finding that the defendants failure to comply with the informal discovery constituted a waiver anyway, pursuant to §766.204(2).

The Second District granted the defendant’s petition for writ. It found that the defendants’ failure to provide the affidavit until after the complaint had been filed, could not cure the omission, because it is a prerequisite to maintaining the cause of action in the first place.

The court observed that while it’s possible to conceive of a statutory scheme that does allow for retroactive waiver of a condition preceding to filing suit based on a subsequent discovery violation, that is not Chapter 766, which sets out a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought.

Here, even though the plaintiff failed to include an expert opinion in the notice of intent, the trial court declined to dismiss the claim based on the erroneous conclusion that the plaintiffs’ failure became irrelevant upon the physician’s subsequent failure to timely respond to an informal discovery request. Informal discovery is not required until after plaintiff has complied with the requirements to file a notice of intent.

Additionally, the provision that allows for a waiver of a claimant’s obligation to include an expert opinion appears in §766.204(2), and not §766.106, and applies to a failure to provide medical records for the presuit investigation that precedes the filing of the notice of intent. §766.106(6) which governs the informal discovery that takes place after completion of the presuit investigation and the filing of the notice of intent does not provide for a waiver of the expert opinion requirement.

The plaintiff never requested medical records from the physician, and essentially bypassed presuit investigation requirements, skipping to the next phase of the statutory procedure by serving an informal discovery request simultaneously with the notice of intent.

The court distinguished the Fourth District’s decision in Otto v. Rodriguez, 710 So. 2d 1 (Fla. 4th DCA 1998) where the plaintiff had already made a request for medical records pursuant to §766.204 and then the physician failed to provide the records, which was considered a waiver of the requirement of the written medical expert opinion and a presuit notice.

Here, the plaintiff never made a request to the doctor for medical records pursuant to §766.204 before filing a notice of intent, so the Otto opinion could not support a post hoc waiver of the expert opinion based on the doctors’ subsequent failure to timely respond to informal discovery. The court quashed the trial judge’s denial of the motion to dismiss.

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COURT PROVIDES ROAD MAP ON HANDLING CASES WHERE DEFENDANT ADMITS FAULT, BUT CONTESTS CAUSATION.

Bachman v. Oliveros, 45 Fla. L Weekly D662 (Fla. 5th DCA March 20, 2020):

Plaintiff was rear-ended and taken by ambulance to the hospital where he was released the same day. The ER described his injury status as “mild,” and over time he treated with several physicians who agreed with the defendant’s experts, that at the time of the accident, the plaintiff had already been suffering from arthritic bone spurs and some disc issues in his neck.

Plaintiff’s medical witnesses testified that the collision aggravated those pre-existing conditions to the extent that ongoing treatment and ultimately surgery were required. His witnesses also testified that they causally related his complaint of dizziness and memory issues to the collision.

At trial, plaintiff moved for a directed verdict on the single issue of permanency, based on the defendants’ doctors agreeing that the duration of the plaintiff’s complaint was consistent with a permanent injury. However, the defendants made it clear they were not conceding causation. Plaintiff did not move for directed verdict on any other issue.

The verdict form had one question on it, which subsumed liability and causation, and asked whether the negligence of the defendants was a legal cause of loss, injury, or damage to the plaintiff. The jury answered no.

The plaintiff moved for a new trial based on the verdict being against the manifest weight of the evidence, noting that at least some of his injuries or medical conditions were caused by the collision. However, plaintiff failed to move for a directed verdict on the issue of his post-collision expenses, and also failed to include any mention of them in the jury instructions or the verdict form. This failure to ask for a DV, or to give the jury the option to award initial medical expenses, waived the issue on appeal.

In light of the deeply conflicting evidence presented by both sides, and because the evidence was certainly far from clear and obvious, and was in fact extremely conflicting, the court found there was no abuse of discretion in the trial judge refusing to award the plaintiff a new trial.

CONTEMPORANEOUS HEALTH CONDITIONS MAY BE ADMISSIBLE IN AN INJURY SUIT—AN AWARD FOR ZERO PAIN AND SUFFERING WHEN THE EVIDENCE OF SUFFERING IS SUBSTANTIALLY UNDISPUTED, IS INADEQUATE AS A MATTER OF LAW.

Rozar v. R.J. Reynold, 45 Fla. L Weekly D677 (Fla. 1st DCA March 23, 2020):

A plaintiff brought a tobacco lawsuit based upon her COPD. However, she also had an extensive medical history unrelated the COPD. The trial court allowed the defense to cross-examine her on those medical conditions, and the appellate court affirmed.

It explained that when a plaintiff’s overall health is affected by prior contemporaneous medical injuries and conditions unrelated to the lawsuit, courts may permit a defendant to cross-examine the plaintiff about them, with the goal of correctly linking the litigated injury with its corresponding harms. As the evidence did not appear to be more prejudicial than probative, nor did it appear to mislead the jury or result in a miscarriage of justice, the court affirmed the decision to admit the evidence.

However, the jury in the case also awarded the plaintiff $375,000.00 in compensatory damages, $50,000.00 for future pain and suffering but NOTHING for past pain and suffering. When evidence is undisputed, or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.

Here, there was no dispute that the plaintiff’s smoking had caused her COPD, and the medical evidence supported the severity of her injuries and suffering. Under §768.74(5) and the uncontroverted evidence, the zero award for past pain and suffering was inadequate as a matter of law.