The Week in Torts – Cases from the Week of July 21, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 29
CASES FROM THE WEEK OF JULY 21, 2017
ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT GOLF CLUB WHOSE EMPLOYEE SERVED ALCOHOLIC BEVERAGES TO GOLFER SUBSEQUENTLY INVOLVED IN A FATAL AUTO ACCIDENT, WHEN THERE WERE FACTUAL ISSUES BOTH AS TO WHETHER THE INTOXICATED GOLFER WAS HABITUALLY ADDICTED TO ALCOHOL, AND WHETHER THE CLUB KNEW ABOUT THE ADDICTION.
Gonzalez v. Stoneybrook West Golf Club, 42 Fla. L. Weekly D1593 (Fla. 5th DCA July 14, 2017):
The defendant golf club serves alcoholic beverages both inside the clubhouse and on the golf course. One of the members who routinely played golf at the club caused a fatal accident. At the time of the crash, the golfer had a blood alcohol content of .302.
The plaintiff sued the club, and the club successfully moved for summary judgment, contending there was no competent record evidence that the golfer was habitually addicted to alcohol or that the club had any knowledge of his alleged addiction.
The trial court ruled this way despite the evidence plaintiff filed: i.e., the depositions of the golfer, one of his friends and a relevant club employee. The depositions established that the golfer had played golf at the club approximately 70-80 times over a three-year period prior to the crash, and that he was intoxicated virtually every time he played with one of the friends who testified.
The golfer’s friend also testified that the golfer normally started the day by drinking two strongly poured whiskey and Cokes in sixteen-ounce Styrofoam cups, poured by bartenders who were familiar with him. At the midpoint of the golf round, the golfer normally went to the Defendant’s clubhouse and purchased another strongly poured sixteen-ounce whiskey and Coke, and would often buy additional drinks from the cart girl who was also an employee of the club.
The plaintiff also filed an affidavit from a lab director at the Miami-Dade County Medical Examiner’s Department opining that when the golfer left the club that day, his blood alcohol content was over .27.
The Fifth District reminded us that to meet the habitual drunkard exception to the dram shop law, the plaintiff must present evidence that the vendor knew the alcohol purchaser was a habitual drunkard. However, the knowledge element though may be met by the presentation of sufficient circumstantial evidence. As stated in Ellis v. N.G.N. of Tampa, serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew the person was a habitual drunkard.
Based on this record, the court concluded that the plaintiff had indeed offered sufficient evidence to defeat summary judgment.
DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO REQUIRE PHYSICIAN TO DISCLOSE A PATIENT’S CONFIDENTIAL MEDICAL RECORDS WITHOUT WRITTEN AUTHORIZATION OR A SUBPOENA WITH NOTICE TO THE PATIENT.
Paylen v. Fitzgerald, 42 Fla. L. Weekly D1583 (Fla. 2nd DCA July 14, 2017):
The physician plaintiff was suing her attorneys for legal malpractice with respect to their representation of her in several criminal cases. The state had charged the doctor with two counts of obtaining a controlled substance by fraud and one count of possession of a controlled substance.
In the context of the legal malpractice litigation, the lawyers served the doctor with an interrogatory asking her to list all the procedures and their dates, where she used Demerol on a specific patient. The doctor objected to the interrogatory arguing that it would cause her to violate HIPAA. She stated she would not release the information unless the lawyers first obtained a release from the patient or sent a subpoena, with notice to the patient.
The trial court overruled the doctor’s objection, finding the information relevant to the issues of the case, and ordered her to comply.
The Second District ruled this was a departure from the essential requirements of law. It noted that section 456.057(7) contains a broad prohibition preventing health care practitioners who generate medical records from furnishing that record to any person other than the patient or the patient’s legal representative except with written authorization of the patient (and with certain limited exceptions).
In this instance, the attorneys did not dispute that they did not provide the patient with their notice of intent, nor did they argue that they were not able to comply with the statute by obtaining written authorization. Finding a departure from the essential requirements of law, the Second District quashed the order.