Hmm, so how long have you had that cough?

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 28

CASES FROM THE WEEK OF JULY 17, 2026

RESTAURANT PATRON NOT ONLY STATED A NEGLIGENCE CLAIM, BUT THE EVIDENCE CREATED JURY QUESTION ABOUT WHETHER THE RESTAURANT SHOULD HAVE KNOWN SERVER SUFFERED FROM CONTAGIOUS ILLNESS THAT INFECTED THE PATRON

Massaua v. Cervelli, 51 Fla. L. Weekly D1355 (Fla. 2d DCA July 8, 2026):

The plaintiffs filed separate negligence actions after both allegedly contracted tuberculosis following meals at the defendant’s restaurant. They alleged that the defendant restaurant owner and the restaurant knew or should have known that one of its servers was suffering from a contagious illness but still allowed him to continue serving customers.

The evidence showed that the server had experienced a persistent, heavy cough and other flu-like symptoms for several months while working at the restaurant. A fellow employee testified that the server was “clearly unhealthy,” complained that he did not feel well, and appeared visibly sick for weeks. She further testified that there were discussions between the server and the restaurant owner concerning his illness. After leaving the restaurant, the server was diagnosed with tuberculosis, and several restaurant employees later tested positive as well. An epidemiologist opined that the plaintiffs likely contracted tuberculosis from the server while dining at the restaurant. 

The trial court entered summary judgment for the defendants, concluding that the plaintiffs failed to establish the restaurant had actual or constructive knowledge that the server specifically had tuberculosis.

The Second District reversed. The appellate court explained that the trial court had framed the duty too narrowly.

The issue was not whether the restaurant knew the server had tuberculosis, but whether it knew or reasonably should have known that he was suffering from a contagious illness that created a foreseeable risk to customers.

A restaurant owes its patrons a duty to maintain reasonably safe premises, and that duty includes taking reasonable steps when an employee’s obvious illness creates a foreseeable risk of transmitting disease.

The court further concluded that the plaintiffs presented sufficient evidence to create jury questions regarding constructive notice, foreseeability, and causation, and that the trial court had improperly weighed conflicting testimony, and discounted the plaintiffs’ expert testimony; these are functions reserved for the jury rather than for the court on summary judgment.

ALLEGATIONS IN COMPLAINT AGAINST PHYSICIAN’S ANSWERING SERVICE DID NOT DIRECTLY RELATE TO MEDICAL CARE OR SERVICES REQUIRING PROFESSIONAL JUDGMENT—AS SUCH THE CLAIMS SOUNDED IN ORDINARY NEGLIGENCE AND MEDICAL MALPRACTICE PRESUIT REQUIREMENTS DID NOT APPLY

Everman v. Kennedy, White & Riggs Orthopedic Associates, LLP, 51 Fla. L. Weekly D1360 (Fla. 2d DCA July 8, 2026):

The plaintiff brought a wrongful death action after her husband died from septic shock following back surgery. Two days after surgery, the patient’s abdominal incision became painful, began draining, and started to separate. A hospital nurse called the defendant orthopedic practice’s after-hours telephone number seeking immediate assistance from the on-call physician.

Instead of transmitting the nurse’s detailed message describing the patient’s deteriorating condition, the answering service reduced the message to a single abbreviation—”COND”—which was forwarded to the physician. No action was taken, and the patient died two days later.

The plaintiff alleged that the defendant’s nonmedical employees negligently designed and administered the answering service system and that the practice was vicariously liable for the answering service’s negligence. The trial court dismissed those counts for failure to comply with Florida’s medical malpractice presuit requirements.

The appellate court reversed. It disagreed with the trial court, and held instead that the allegations concerned ordinary business negligence, not medical malpractice.

The answering service operators possessed no medical training, exercised no medical judgment, and merely transmitted—or failed to transmit—messages. Similarly, the plaintiff’s claims focused upon administrative decisions made by non-medical personnel regarding how emergency calls were handled. Also, because proving those claims would not require expert testimony to establish a breach of the prevailing professional standard of medical care, the Medical Malpractice Act’s presuit requirements did not apply.

The court therefore reversed the dismissal of the ordinary negligence counts and remanded for further proceedings.

NICA COMPENSABILITY DETERMINATION REQUIRED BEFORE NEGLIGENCE CLAIMS AGAINST HOSPITAL EXECUTIVES COULD PROCEED—TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW CONCLUDING OTHERWISE

Mount Sinai Medical Center of Florida, Inc. v. Esposito, 51 Fla. L. Weekly D1373 (Fla. 3d DCA July 8, 2026):

The plaintiffs sued the defendant hospital, several hospital executives, and others after their infant allegedly sustained catastrophic neurological injuries resulting from a delayed cesarean section. They alleged that the executives negligently failed to implement systems and procedures designed to prevent delays in obstetrical care.

The defendants moved to abate the action pending a determination by an administrative law judge as to whether the claim was compensable under Florida’s Birth-Related Neurological Injury Compensation Plan (NICA). Although the trial court referred related medical negligence claims against the treating physicians to the administrative law judge, it had refused to abate the claims against the hospital executives.

The appellate court granted the requested writ. It explained that the Legislature vested the administrative law judge with exclusive jurisdiction to determine whether a birth-related neurological injury is compensable under NICA. That compensability determination is a statutory prerequisite to maintaining a civil action involving a potentially compensable injury.

Because the plaintiffs had alleged a birth-related neurological injury that had occurred during labor and delivery by participating providers, the trial court departed from the essential requirements of law by allowing the claims to proceed before making the threshold compensability determination.

The court therefore quashed the order to the extent it denied abatement pending the NICA proceeding.

DRIVER’S MERE USE OF A CELL PHONE ALONE DID NOT SUPPORT THE PLAINTIFF’S PUNITIVE DAMAGES CLAIM ARISING FROM REAR-END COLLISION

Glade v. Govey, 51 Fla. L. Weekly D1381 (Fla. 4th DCA July 8, 2026):

The plaintiff sought leave to amend his complaint to assert punitive damages after alleging that the defendant, a Lyft driver, rear-ended his vehicle while using a cell phone.

The plaintiff’s evidence consisted primarily of testimony from the defendant’s passenger, who stated that the defendant was manipulating his phone with his fingers immediately before the collision. However, the passenger could not say what the defendant was doing on the phone, how long he had been using it, how fast he was traveling, or whether the defendant had failed to brake before impact.

The appellate court reversed the order permitting the punitive damages claim. It reiterated that punitive damages are reserved for conduct amounting to intentional misconduct or gross negligence and that merely using a cell phone while driving—even if it violates Florida’s texting statute—is not enough. To justify punitive damages, the plaintiff must present evidence of additional reckless conduct demonstrating a conscious disregard for the safety of others.

Because the plaintiff’s proffer established, at most, ordinary negligence arising from a routine rear-end collision, the appellate court refused to allow the punitive damages claim.

HEALTH CARE PROVIDER OWED NO DUTY TO FORMER PATIENT WHO TERMINATED TREATMENT BEFORE LATER COMMITTING SUICIDE—THERE IS NO “ON GOING” DUTY OWED TO A PATIENT WHO IS NO LONGER A PATIENT

Garrett v. Lynch, 51 Fla. L. Weekly D1402 (Fla. 2d DCA July 10, 2026):

The plaintiff, as personal representative of her husband’s estate, filed a wrongful death action after the decedent committed suicide approximately three months after terminating his relationship with the defendant pain management practice.

The decedent had suffered chronic pain for years and had long been prescribed fentanyl products. After the medical practice was sold, the new supervising physician advised that the practice would no longer prescribe one of the fentanyl medications. The decedent refused alternative medications, terminated the physician-patient relationship, and unsuccessfully sought treatment from several other pain specialists. During that time, he repeatedly threatened suicide if he could not obtain fentanyl but ultimately was not prescribed the medication by any subsequent provider. He later took his own life.

The trial court entered summary judgment for the defendants, concluding they owed no duty after the patient ended the relationship. The appellate court agreed. It explained that the duties imposed upon health care providers arise from the physician-patient relationship.

Once a patient, like the decedent, voluntarily terminates that relationship and leaves the practice, no continuing common law or statutory duty requires the defendants to monitor or protect the patient. The court distinguished cases involving current patients and inpatient facilities, emphasizing that no authority exists to impose a continuing duty on physicians to former outpatient patients under these kinds of circumstances.

Because no legal duty existed after the physician-patient relationship ended, the trial court properly granted summary judgment for the defendants.