The Week in Torts – Cases from the Week of December 20, 2019
What Is An “Original Source”?
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 51
CASES FROM THE WEEK OF DECEMBER 20, 2019
TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY ORDERING A HOSPITAL TO PRODUCE “EACH AND EVERY RECORD THAT IDENTIFIES EACH AND EVERY TIME THE DEFENDANT PHYSICIAN BECAME BOARD ELIGIBLE” – ORDER OVERBROAD BECAUSE IT REQUIRED DISCLOSURE OF PRIVILEGED DOCUMENTS CONSIDERED BY THE BOARD IN HIRING AND CREDENTIALING THE DEFENDANT – AMENDMENT 7 DOES NOT SUPPORT ORDERS REQUIRING BLANKET DISCLOSURE OF PRIVILEGED DOCUMENTS.
Tarpon Spring Hospital Foundation v. White, 44 Fla. L. Weekly D2942 (Fla. 2nd DCA December 11, 2019):
In this medical malpractice case, plaintiff asked the hospital to produce every record that identified each and every time the doctor became board eligible by the American Board of Internal Medicine prior to a certain date. After a hearing on a motion to compel, the trial judge ordered the hospital to provide the requested documents for three years. The hospital filed a petition for a writ of certiorari, arguing the order was overbroad and would require their production of documents privileged under §395.0191, Fla. Stat.
§395.0191(8) prohibits the discovery of investigations, proceedings and records of a hospital board in any civil action against a healthcare provider, of matters subject to evaluation and review by a hospital board. The privilege is intended to provide a degree of confidentiality necessary for a full and frank evaluation, which the Legislature sought to encourage.
This privilege extends not only to documents created by the board, but to any document considered by the committee or board as part of its decision-making process. However, documents “otherwise available from original sources are not to be construed as immune from discovery…merely because they were presented during proceedings of such board.” In other words, a document that a party secures from the original source is not privileged merely because it was then presented during a peer review committee or board preceding.
In 2004, Amendment 7 allowed patients the right to access any records related to adverse medical incidents. This constitutional amendment defines adverse medical incidents as “medical negligence”, “intentional misconduct” or other such acts.
While Amendment 7 partially eviscerates application of the statutory discovery protection set forth in the statute, it only applies if the records concern adverse medical incidents. The Amendment does not extend entitlement to documents that contain general credentialing information unrelated to an adverse medical incident.
In this case, the plaintiff argued that her requests were proper under Amendment 7 because the negligence in the credentialing of the defendant doctor resulted in the “adverse medical incident” that led to the death.
The court reminded us that this argument was actually rejected by the case of West Florida Regional Medical Center v. See, 18 So. 3d 676, 690 (Fla. 1st DCA 2009). A document only relates to an adverse medical incident when it relates to a specific incident involving a specific patient that caused or would have caused injury or death of the patient.
In this case, there was no established adverse medical incident to which the documents of the doctor’s training-related, and the trial court departed from the essential requirements of law in ordering the production of those documents.
The plaintiff also argued that those documents were not privileged because they originated from sources outside the hospital board. The court rejected that argument, stating that virtually all the information considered during the peer review process originates from sources “outside”, and therefore this interpretation would effectively eliminate the protections granted by the statute. Thus, plaintiff has to acquire those documents from sources other than the hospital board itself.
§376.313(3) OF THE 1983 WATER QUALITY ASSURANCE ACT PERMITS A PRIVATE CAUSE OF ACTION FOR PERSONAL INJURY.
Lieupo v. Simon’s Trucking Inc. 44 Fla. L Weekly S298 (Fla. December 19, 2019):
A tow truck driver responded to an accident where the defendant’s truck that was transporting batteries spilled battery acid onto the highway. The tow truck driver came into contact with the battery acid, causing him serious personal injuries. He filed a complaint under §376.313(3), Fla. Stat., which imposes strict liability for the discharge of certain types of pollutants.
The defendant argued that the plaintiff could not seek recovery because the statute did not permit recovery for personal injury. The trial court rejected the argument, and the jury found the battery acid caused the plaintiff injury and awarded over $5 million dollars in damages.
Because an applicable version of this act included language that people could bring causes of action for “all damages resulting from a discharge or other condition of pollution” covered by the statute, the plain meaning of the phrase, “all damages” covered plaintiff’s claim. The Supreme Court receded from one of its earlier decisions based on the 1970 version of the statute and made very clear that a cause of action does exist.
AN INSURER THAT ISSUES A REDUCED PREMIUM ON A COLLECTOR VEHICLE POLICY MAY NOT LIMIT UNINSURED MOTORIST COVERAGE UNDER THAT SPECIALTY POLICY TO ACCIDENTS INVOLVING THE OCCUPANCY OR USE OF THE COLLECTOR VEHICLE ITSELF.
American Home Insurance Co. v. Lentini, 44 Fla. L Weekly S300 (Fla. December 19, 2019):
A man was operating his motorcycle when he was involved in a fatal accident. His estate sought uninsured motorist benefits under his policy that was issued on a collector Corvette. The policy contained a provision that limited uninsured motorist coverage to accidents involving the covered vehicle only.
In analyzing §627.727(9) which governs uninsured motorist coverage, nothing in that section excludes collector or antique vehicle insurance policies from the application of the statute. In fact, to the contrary, §627.727 explicitly states that no motor vehicle liability insurance policy shall be delivered or issued for delivery in the state unless uninsured motorist coverage is provided.
In this case, the insured explicitly selected stacked uninsured coverage under the collective vehicle policy. Because the limitations to the uninsured motorist coverage in the policy did not comply with the statutory mandates of §627.727, uninsured motorist coverage was available.
NO CERTIORARI REVIEW OF ORDER DENYING MOTION TO DISMISS A COMPLAINT FOR A PURE BILL OF DISCOVERY.
American Medical Systems v. MSP Recovery Claims, 44 Fla. L Weekly D2937 (Fla. 3rd DCA December 11, 2019):
The plaintiff filed a pure bill of discovery compelling the defendants to identify whether certain Medicare beneficiaries were implanted with pelvic mesh product sold by them, and whose healthcare cost were subsequently paid by a Medicare Advantage Organization. The defendant moved to dismiss the amended complaint arguing that plaintiff had failed to state a valid claim for a pure bill of discovery, and that it lacked standing to bring such a claim.
The court observed that the challenged order in the case did not require “cat out of the bag” discovery, but only for the defendant to file an answer to the plaintiff’s complaint (not actually required in production of any discovery). Because the production of discovery was not actually required, the showing of an irreparable harm was not made, leading the court to deny the petition.
THE POLICY DEFINITION LIMITED COVERAGE TO SINGLE PER PERSON LIMIT FOR CONSORTIUM CLAIM.
Auto Club Insurance Co. v. Lewis, 44 Fla. L. Weekly D2962 (Fla. 5th DCA December 13, 2019):
The insurance company brought a dec action to determine the extension of its liability in a case where the policy had $100,000 per person and $300,000 per occurrence limits. The insurance company contended that under the terms of the policy the parents of a young man who was killed were only entitled to the single limit of liability under the policy.
The policy defined limits of liability as “bodily injury” to one person in any one accident. Bodily injury to one person includes damages for care, loss of consortium, or loss of services sustained as the result of the same injuries by (a) The injured person; and (b) any other person.
The court found that the term bodily injury was plainly and unambiguously defined to mean bodily harm, sickness, or disease including death, which meant that the $100,000 was the most that the insurer would pay where there was a bodily injury (including a death) to one person, and also that the damages subject to that limit included damages for the care of the injured person and the loss of consortium.
The interpretation advocated by the plaintiff actually expanded the definition of bodily injury to include loss of consortium, and negated the “in any one accident” limits set forth. This also rendered the words “to one person” superfluous. As such, the plaintiff was only entitled to the single limit.
ORDER DENYING MOTION TO ADD A CLAIM FOR PUNITIVE DAMAGES NOT REVIEWABLE, BECAUSE DENIAL COULD BE ADEQUATELY REMEDIED ON APPEAL.
High Five Products, Inc. v. Riddle 44 Fla. L. Weekly D2968 (Fla. 2nd DCA December 13, 2019):
The Second District aligned itself with its sister courts holding that an order denying a motion to add a claim for punitive damages is not reviewable via certiorari because such a denial can be adequately remedied on appeal.