The Week In Torts – Cases from April 29, 2022
Joerg not what we thought…
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 17
CASES FROM THE WEEK APRIL 29, 2022
THE HOLDING IN JOERG v. STATE FARM WHICH HAS SUPPORTED THE INTRODUCTION OF THE FULL AMOUNT OF FUTURE MEDICAL EXPENSES IN PERSONAL INJURY CASES, ACTUALLY ONLY APPLIES TO THE INTRODUCTION OF FUTURE MEDICAL EXPENSES WHEN MEDICARE IS INVOLVED—HOWEVER, AS TO PAST MEDICALS, THE PLAINTIFF IS LIMITED TO INTRODUCING THE REDUCED AMOUNT PAID BY MEDICARE.
Dial v. Calusa Palms Master Ass’n, 47 Fla. L. Weekly S115 (Fla. Apr. 28, 2022):
The Second District certified a question asking whether Joerg, (prohibiting defendants from introducing evidence of Medicare eligibility for future medical expenses) applies to allow plaintiffs to introduce the full amount of the medical expenses incurred, or just the reduced amounts that Medicare paid for past medical expenses.
Before the trial in this slip and fall case, the trial court granted a motion in limine precluding the plaintiff from introducing the gross amount of her medical expenses, instead limiting her to introducing the discounted amounts paid by Medicare. The plaintiff appealed, arguing that Joerg allowed her to admit the full amount of the expenses.
The Second District affirmed the trial court’s ruling based upon its decision in Cooperative Leasing v. Johnson, which held that the appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits, is limited to the amount that the Medicare providers agreed to accept.
In Joerg, the court addressed whether the exception to the collateral source rule created in Stanley applied to the future benefits provided by social legislation such as Medicare. The court found that it is extremely speculative to attempt to calculate damage awards based on benefits that a plaintiff has not yet received and may never receive, depending on whether the benefits become insufficient or the plaintiff’s eligibility ceases to continue.
The court’s holding in Joerg precluding the admission of evidence of a plaintiff’s eligibility for future Medicare benefits, was limited only to future medical expenses. Thus, Joerg has no application to past medical expenses, which was the precise issue involved in this case.
TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW RESULTING IN IRREPARABLE HARM BY DENYING THE DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S MEDICAL MALPRACTICAL SUIT FOR FAILING TO COMPLY WITH THE STATUTORY PRE-SUIT REQUIREMENTS
University of Miami v. Jones, 47 Fla. L. Weekly D910 (Fla. 3rd DCA Apr. 20, 2022):
The defendant filed a motion to dismiss challenging the plaintiff’s compliance with several of the pre-suit requirements found in Chapter 766. The defendant’s motion argued that the plaintiff failed to conduct a reasonable good faith investigation, plaintiff’s notice of intent to sue was facially defective and that plaintiff failed to provide a corroborating medical expert affidavit.
The plaintiff responded focusing solely on the defendant’s purported failure to timely provide copies of medical records and consequent waiver of Section 766.203(2)’s requirement that the notice of intent to sue be accompanied by a corroborating medical expert affidavit.
After the trial court conducted a non-evidentiary hearing (despite the defendant’s repeated request for an evidentiary hearing), the trial court denied the motion.
The defendant’s motion to dismiss required the trial court to determine whether the defendant had complied with the pre-suit requirements of Chapter 766. Thus, the trial court effectively denied the procedural safeguards in denying the evidentiary hearing, necessitating the issuance of a writ of certiorari.
TRIAL COURT ERRED IN DENYING MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, WHICH HAD BEEN ENTERED WHEN DEFENSE COUNSEL FAILED TO APPEAR AT A CASE MANAGEMENT CONFERENCE – ORDERS FAILED TO CONTAIN ANY FINDING THAT THE DEFENDANT’S CONDUCT WAS WILLFUL AND CONTUMACIOUS
Marcelus v. Aqua Finance, Inc., 47 Fla. L. Weekly D919 (Fla. 4th DCA Apr. 20, 2022):
Plaintiff filed a lawsuit, which was answered and assigned to a judge at the Broward County/South Courthouse. Interrogatories were served and the case was noticed for trial. The case was actively litigated. In 2019, the parties attended mediation. The case seemed to stall somewhere in 2020 no doubt due to the pandemic.
On June 22, 2021, a different county judge issued an order setting a case management conference to be held in person at the Central Courthouse in Fort Lauderdale. Neither the defendants nor their counsel appeared at the case management conference. On the same day, the judge entered an order for default judgment against the defendants for failure to appear and instructed the plaintiff to submit a judgment within five (5) days. The order contained no finding that the defendants or their counsel’s failure to appear was willful and contumacious. A week later, the court issued a default judgment.
The defendants immediately moved to set aside the default the same day the judgment was entered. The trial court denied the motion stating that the defendants failed to establish excusable neglect by way of an affidavit, but the trial court made no findings regarding mistake or inadvertence.
Florida courts have a long-standing policy in favor of resolving civil disputes on the merits. Here, the trial court entered an order for default judgment for their failure to appear, but failed to make any factual finding, specifically no finding that the defendants’ conduct was willful and contumacious. The Fourth District reversed, advising the trial court to consider the imposition of other lesser sanctions for the failure to attend the case management hearing.
TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION TO DISMISS MEDICAL MALPRACTICE LAWSUIT BASED ON PLAINTIFF’S NON-COMPLIANCE WITH STATUTORY PRE-SUIT REQUIREMENTS AFER CONCLUDING THAT THE LAWSUIT INVOLVED CLAIM OF ORDINARY NEGLIGENCE – ALLEGATIONS THAT THE DEFENDANT BREACHED THE PROFESSIONAL STANDARD OF CARE WERE DIRECTLY RELATED TO PROFESSIONAL MEDICAL JUDGMENT OR SKILL
Martin Memorial Health Systems v. Gorham, 47 Fla. L. Weekly D927 (Fla. 4th DCA Apr. 20, 2022):
A woman died at Martin Memorial Hospital. Her son and personal representative asserted that she arrived at the hospital ill and with her walker, but the hospital did not allow her to keep her own walker. The nursing staff advised that they would either provide her with a walker, or that one of the nurses would take care escorting her. They also advised that the woman’s bed had an alarm that would ring if she tried to get off the bed.
The night she was admitted, the decedent fell while trying to get to the bathroom. The daughter was called and informed about the fall, and was told she had a slight fracture. Three weeks later, the treating orthopedic surgeon informed the children that she had sustained three fractures of her pelvis. The woman died shortly thereafter, and plaintiffs alleged that she died due in large part to the injuries from her fall.
The case came down to whether or not medical treatment, and the professional standard of care were at issue. The plaintiff asserted that the claim involved a fall, and therefore was not related to medical negligence.
However, the court explained that the case fell within one of those gray areas, but did involve the professional standard of care as applied to nurses. The decision to give or take away a device to help a patient walk sounds in medical negligence and was directly related to the use of professional judgment or skill. As such, the plaintiff should have complied with Chapter 766, and the failure to do so necessitated an order granting the hospital’s motion to dismiss.
CASE STEMMING FROM INJURIES SUFFERED BY A NURSING HOME RESIDENT AFTER SHE ALLEGEDLY SLIPPED IN A PUDDLE CAUSED BY AN EMPLOYEE’S PLACEMENT OF A FOOD TRAY NEAR A WALKWAY, ALSO NECESSITATED COMPLIANCE WITH THE PRE-SUIT REQUIREMENTS FOUND IN THE ASSISTED LIVING FACILITIES ACT – CLEAR AND UNAMBIGUOUS LANGUAGE IN THE ALFA SHOWS THE LEGISLATURE INTENDED FOR COMMON LAW NEGLIGENCE CLAIMS TO BE BROUGHT WITHIN THE FRAMEWORK OF THE ACT
Cohen v. Autumn Village, 47 Fla. L. Weekly D932 (Fla. 1st DCA Apr. 20, 2022):
The plaintiff, a resident of the defendant’s assisted living facility, sued alleging that an employee of the assisted living facility had placed a food tray in front of her door. The cup on the tray spilled, creating a puddle on the walkway that she slipped in, and sustained injuries.
The defendant moved to dismiss, arguing that the Assisted Living Facilities Act provided the exclusive remedy for suits brought by ALF residents seeking damages for personal injuries. Because the plaintiff had failed to comply with the ALFA’s pre-suit requirements and its two-year statute of limitations, the ALF sought dismissal of the case.
The ALFA includes a “resident bill of rights” geared towards accomplishing its goals. That bill of rights is found in Section 429.28. Among the rights afforded to residents is the right to a safe and decent living environment free from abuse and neglect.
Here, though the plaintiff’s claim against the ALF undeniably sounded in negligence, she argued that the exclusive remedy provision did not apply to a common-law slip and fall case like hers, asserting that the Act was meant to cover only professional negligence claims.
The court disagreed. It found that her common-law claim was subject to the Act and therefore the pre-suit notice requirements and the two-year statute of limitations applied to her claim. Because the plaintiff failed to comply with those pre-suit requirements and the two-year statute of limitations, the court affirmed the order dismissing her complaint with prejudice.