The Week In Torts – Cases from March 17, 2023
But Judge, they didn’t even file a response!
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 11
CASES FROM THE WEEK OF MARCH 17, 2023
TRIAL JUDGE’S ACCEPTANCE VERBATIUM OF PROPOSED ORDER SUBMITTED BY ONE PARTY WITHOUT ALLOWING THE OTHER PARTY TO REVIEW THE PROPOSED ORDER COUPLED WITH JUDGE’S ENTRY OF ORDER MAKING EVIDENTARY RULING FOLLOWED A SCHEDULED NON-EVIDENTARY HEARING WERE SUFFICIENT TO CREATE A WELL-FOUNDED FEAR THAT THE ADVERSE PARTY WOULD NOT RECEIVE A FAIR AND IMPARTIAL ADJUDICATION.
Erren v. Marin, 48 Fla. L. Weekly D509 (Fla. 4th DCA Mar. 8, 2023):
The former wife filed a motion to vacate a referral to mediation order and dismissed the former husband’s petition based on his continued lack of prosecution. A day before the scheduled hearing, the former husband filed a motion to compel mediation and for an award of attorney’s fees. The notice did not indicate that the hearing would be evidentiary.
After the hearing, the trial court issued an order noting that the former wife was scheduled a hearing when the former husband’s attorney was out with COVID and then granted the former husband’s motion for attorney’s fees and to compel mediation.
The former wife filed a motion for rehearing arguing that the court’s rubber stamped a proposed order by the former husband’s and submitted via ex-parte communication to the judge. The former wife also alleged that the trial court made evidentiary findings at a non-evidentiary hearing. The trial court denied the former wife’s motion for rehearing without explanation.
The court determined that under these facts, the former wife’s motion to disqualify the judge is legally sufficient and supported a well-founded fear that she would not receive a fair and impartial adjudication necessitating a writ of prohibition.
TRIAL COURT CANNOT GRANT SUMMARY JUDGMENT SOLELY BECAUSE THE NON-MOVANT FAILED TO RESPOND – – RULE ALSO REQUIRES TRIAL COURT TO STATE ON THE RECORD REASONS FOR GRANTING OR DENYING THE MOTION FOR SUMMARY JUDGMENT.
Fuentes v. Luxury Outdoor Design, 48 Fla. L. Weekly D510 (Fla. 4th DCA Mar. 8, 2023):
After the trial court granted a motion to dismiss on most of the counts against the defendant, the defendant moved for summary judgment on the remaining counts. During the hearing, the trial court observed that plaintiff had failed to file a response and that the summary judgment rule required one including the supporting factual position at least 20 days before the hearing.
The trial court concluded that based on the lack of response, there was no dispute of factual allegations and granted summary judgment for the defendant.
First, the appellate court noted that the motion for summary judgment quoted from the first amended complaint rather than the operative complaint. Second, the summary judgment rule does not provide that summary judgment may be granted solely on a failure to respond. The rule provides that if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 1.510(c) the court may, among other things, may consider the fact undisputed for the purposes of the motion. The rule also requires a trial judge to state on the record the reasons for granting or denying a motion for summary judgment.
The trial court’s reason for granting the motion was that the plaintiff failed to respond leaving the court with no alternative but to find the facts were undisputed. However, that reasoning did not indicate that the court analyzed whether the supporting materials including the facts considered undisputed would necessarily result in an entitlement to a summary judgment.
The trial court erred in believing that the non-movant’s failure to respond required summary judgment. While the trial court may have concluded that based on undisputed facts and arguments raised by the defendant in his motion, summary judgment was proper, the finding was not apparent for the reason stated on the record.
COURT REVERSED DISMISSAL OF AN EMOTIONAL DISTRESS CASE AGAINST THE CHURCH AND PRIEST BASED ON THE IMPACT RULE.
Lotierzo v. Barbarito, 48 Fla. L. Weekly D512 (Fla. 4th DCA, Mar. 8, 2023):
A woman attempted to state causes of action against a priest and a church hierarchy arising out of her ongoing counseling relationship with the priest.
The trial judge dismissed the complaint against the church with prejudice based on the application of Florida’s Impact Rule leaving the priest as the only remaining defendant.
The Impact Rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff suffered in an impact.
In Doe v. Evans, the Florida Supreme Court recognized that a fiduciary duty generally arises in counseling relationships such as those between a priest and parishioner. Those relationships are not subject to the Impact Rule, necessitating reversal of the dismissal.
TRIAL COURT ERRED IN COMPELLING PRODUCTION OF INVESTIGATIVE REPORT PREPARED BY DEFENDANT HOSPITAL IN RESPONSE TO A PLAINTIFF’S FALL THAT OCCURRED AT THE HOSPITAL WHILE PLAINTIFF WAS VISITING A PATIENT – – REPORT QUALIFIED AS PRIVILEGED PATIENT SAFETY WORK PRODUCT UNDER THE FEDERAL PATIENT SAFETY AND QUALITY IMPROVEMENT ACT.
Shands Teaching Hospital v. Veylotte, 48 Fla. L. Weekly D522 (Fla. 1st DCA Mar. 8, 2022):
The plaintiff was visiting a patient at Shands and fell on a liquid in the hallway. She sued Shands for injuries sustained from the fall.
Plaintiff sought to discover an “investigative report” prepared in response to her fall. Over Shands objection based on patient safety work product, the trial court compelled production.
The Federal Patient Safety and Quality Improvement Act provides that patient safety work product includes any data reports, records, memoranda and analyses or written or oral statements.
The incident here occurred on a patient unit of the hospital where patients and visitors walk. The court concluded that it did not matter that the plaintiff was not a patient at the time of her fall, that the report was assembled for reporting of a patient safety organization and was, in fact, reported to one to improve patient safety rendering it patient safety work product.
Because the report was privileged, the trial court erred in compelling its production.
CERTIORARI PROPER TO REVIEW A MOTION TO DISMISS CASE BASED ON FAILURE TO SATISFY PRESUIT REQUIREMENTS IN A MEDICAL MALPRACTICE CASE – – AFFIDAVIT OF A NEUROSURGEON DID NOT CORROBORATE THE PLAINTIFF’S CLAIMS AGAINST SCRUB TECHNICIANS AND AN ANESTHESIOLOGIST.
Florida Health Sciences v. Jackman, 48 Fla. L. Weekly D530 (Fla. 2nd DCA Mar. 10, 2023):
A few days after undergoing a surgical procedure at Tampa General Hospital, the plaintiff experienced complications necessitating her readmission where she received intravenous antibiotics and underwent a lumbar puncture. She also developed a post operative brain abscess requiring two additional surgeries.
Plaintiffs asserted that TGH failed to obtain appropriate imaging studies that would have identified the brain abscess sooner and resulted in earlier antibiotic treatment. They also asserted that the hospital negligently performed the lumbar puncture and with respect to the initial surgery, alleged that TGH failed to properly sterilize the surgical instruments.
The plaintiffs supplemented their notice with affidavits from three experts, a neurosurgeon, a neurologist, and an ENT.
The hospital moved to dismiss the two counts based on the negligence of scrub technicians who are the agent’s employees of TGH for failure to use sterile equipment and for taking cultures with bacteria present.
Pursuant to §766.302(2), an expert in a medical malpractice case must meet the definition of medical expert under §766.202(6) requiring a specialist to specialize in the same specialty. In other words, if the intended medical defendant is a specialist, the corroborating affidavit must come from a provider who specializes in the same specialty. If the expert’s testimony relates to medical support staff, the expert must have knowledge of the standard of care applicable to such medical support staff through active clinical practice or instruction.
The court concluded that the neurosurgeon could not corroborate the counts against the scrub technicians and an anesthesiologist. The court does not actually say that the neurosurgeon could not give the opinions, but instead that the neurosurgeon’s affidavit did not mention a scrub technician, unsterile equipment or anything remotely approaching those topics.
Alternatively, the plaintiffs’ contended that count two against the scrub technician was a simple negligence claim not requiring any expert corroboration. The court disagreed, even noting that the plaintiff’s second amended complaint asserted that the action was being brought pursuant to Chapter 766.
The court did certify conflict with a case holding that appellant courts lack jurisdiction to review non-procedural disputes involving corroborating experts on a writ of certiorari.