The Week in Torts – Cases from the Week of June 1, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 22
CASES FROM THE WEEK OF JUNE 1, 2018
SUFFICIENT EVIDENCE EXISTED TO ESTABLISH THE REASONABLENESS AND NECESSITY OF THE MEDICAL BILLS–TRIAL COURT DID NOT ABUSE DISCRETION BY ALLOWING THE SURGEON TO TESTIFY AS AN EXPERT REGARDING CAUSATION AND PERMANENCY, EVEN THOUGH HE HAD NOT BEEN DISCLOSED AS AN EXPERT AS REQUIRED BY THE PRETRIAL ORDER.
Walerowicz v. Armand-Hosang, 43 Fla. L. Weekly D1165 (Fla. 4th DCA May 23, 2018):
In this case of admitted negligence, the case proceeded to a jury to resolve the issues of causation, and permanency, as well as the reasonableness and necessity of the medical bills and other damages. The jury found for the plaintiff on all issues.
In the appeal brought by the defendant, plaintiff’s treating surgeon testified extensively about the plaintiff’s shoulder injury which had required surgery and treatment. The surgeon testified that the total bill for his practice group was $58,000 which included surgery, office visits, x-rays and therapy.
The plaintiff testified about her various care and treatment, which began at an urgent care center. She told of her different medical appointments, physical therapy, massage, and ultimately surgery. After referencing an exhibit containing her medical bills, the plaintiff’s attorney asked the plaintiff if she still owed all of the money on the medical bills, and she testified that she did. Plaintiff’s medical records were then introduced into evidence along with her bills.
During the defendant’s presentation, the defense medical expert disputed the reasonableness of the amounts charged for the various procedures. The defendant moved for a directed verdict on the issue of past medical expenses, contending that the plaintiff failed to present sufficient evidence to prove the reasonableness and necessity of the past medical expenses, except for the treatment provided by the surgeon. The trial court denied that motion.
While it is plaintiff’s burden to prove the reasonableness and necessity of medical expenses, and although some jurisdictions consider the evidence of the amount of a medical bill to be sufficient proof of reasonableness, many jurisdictions including Florida require “something more.”
A patient’s obligation is not to pay whatever the provider demands, but only a reasonable amount.
Still, as defendant conceded, expert testimony is not required to establish reasonableness and necessity of medical bills, and a plaintiff’s lay testimony may do that. The defendant argued that the plaintiff simply testified that she still owed the past medical expenses, but she did not know the amount, and did not associate each bill to the subject accident.
The plaintiff responded that her testimony sufficiently established reasonableness and necessity by describing the treatment for which the bills were incurred, and relating that treatment to the injuries sustained. She maintained that she was not required to address specific dollar amounts (contrary to defendant’s assertion), and all that was necessary was to link the medical treatments she received to the injury resulting from the accident.
The court concluded that the combination of the plaintiff’s testimony and the surgeon’s testimony coupled with the introduction of the medical bills constituted sufficient testimony for the plaintiff to establish the reasonableness and necessity of the bills presented to the jury. The trial court properly denied the defendant’s motion for a directed verdict on that issue.
As to the testimony of the surgeon, the surgeon had appeared on both witness lists as a treating physician, and the defendant never sought to depose him either time. In fact, both parties were allowed to present their experts’ disputing causation of permanency of the plaintiff’s injury, despite strict compliance with the trial court’s order.
The court observed that under Binger, that if after considering the applicable factors and any other relevant ones, that the trial court concludes that the use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.
THE THIRD DISTRICT AGAIN REJECTS THE CITY’S ATTEMPT TO TAKE AN INTERLOCUTORY APPEAL WHEN THE TRIAL COURT’S DENIAL OF THE MOTION TO DISMISS DID NOT TURN ON A FINDING OF SOVEREIGN IMMUNITY.
City of Coral Gables v. Blanco, 43 Fla. L. Weekly D1153 (Fla. 3rd DCA May 23, 2018):
After a car accident which occurred when the seriously injured victim’s vehicle was struck by another vehicle fleeing from the police, the city moved to dismiss the plaintiff’s complaint.
The trial judge denied the city’s motion to dismiss without prejudice, and explicitly found that sovereign immunity was not “self-evident” under the facts pled.
The Third District ruled that because the trial court had not determined as a matter of law that the city was not entitled to sovereign immunity, it lacked jurisdiction to review the non-final order under rule 9.130(a)(3)(C)(xi) (citing multiple cases where the court ruled similarly).
TRIAL COURT ERRED IN FINDING SPECIFIC PERSONAL JURISDICTION OVER DEFENDANT, MARYLAND HEALTH INSURER, WHERE DEFENDANT LACKED MINIMUM CONTACTS TO SATISFY DUE PROCESS–THE PROPER TEST FOR DETERMINING THE EXISTENCE OF MINIMUM CONTACTS IS WHETHER THE DEFENDANT “PURPOSELY AVAILED ITSELF” OF THE BENEFITS OF FLORIDA LAW–NOT WHETHER THE DEFENDANT COULD FORESEE BEING HALED INTO COURT IN FLORIDA.
Carefirst of Maryland, Inc. v. Recovery Village at Umatilla, LLC, 43 Fla. L. Weekly D1159 (Fla. 4th DCA May 23, 2018):
The defendant, a Maryland based insurance company, sells health insurance policies to both Maryland residents and Maryland companies with insurers outside of Maryland. It is a licensee of Blue Cross and participant in the “Blue Card” program which allows members to receive nationwide treatment while allowing the defendant to charge the in-state discounted rates that Blue Cross uses in that particular state.
The defendant does not own any property in Florida, maintains no office here, and does not advertise in the state. Its customers can access a list of Florida providers on their website that directs them to Blue Cross’s national doctor and hospital finder through a link to the defendant.
The defendant contracts with Florida Blue to allow Florida Blue to pay healthcare providers, such as the plaintiff, at a scheduled price determined by Florida Blue. The plaintiff in the case, the Recovery Village, was not able to contract directly with the defendant. Instead it contracted with Florida Blue.
However, the Recovery Center was not in the Florida Blue network and did not agree to accept anything less than full price for its services. Eight of the defendant’s members–who were all Maryland residents–received treatment from the plaintiff, a Florida based substance abuse and eating disorder facility.
The plaintiff sued numerous defendants participating in the Blue Card program for under-payment of its contracts. The defendant moved to dismiss arguing the lack of personal jurisdiction.
To find that an out-of-state defendant is subject to specific personal jurisdiction, a trial court must first determine that the defendant is subject to Florida’s long arm statute and has sufficient minimum contacts with the state to satisfy due process requirements. The proper test for jurisdiction is whether the defendant has purposely availed itself of the benefits of Florida law through actions directed at Florida.
The Florida Supreme Court has held that there is no specific jurisdiction where an insurer who offers national coverage, but whose only contact with Florida is a result of the insured’s unilateral actions (e.g., getting into an accident).
The unilateral activity of those who claim a relationship with a non-resident defendant, however, cannot satisfy the requirement of the non-resident’s contact with the forum state. There must be some “act” by which the defendant purposely availed itself of the privilege of conducting activities within the forum state. The purposeful availment requirement insures that a defendant will not be haled into a jurisdiction solely because of random, fortuitous or attenuated contact, or by the unilateral activity of another party or third person.
In this case, the defendant’s contact with the plaintiff was based on its customers’ unilateral decision to seek treatment in Florida, and as such, there was no personal jurisdiction.
WHERE INSURER REJECTED REMITTITUR FOR FUTURE MEDICAL EXPENSES ONLY, IT WAS ERROR TO ORDER A NEW TRIAL ON ALL DAMAGES.
Nieves v. State Farm, 43 Fla. L. Weekly D1171 (Fla. 5th DCA May 25, 2018):
After State Farm successfully sought a remittitur on future medical expenses, the plaintiffs rejected it. Upon doing so, the trial court granted a new trial.
Observing that when a remittitur is granted solely for one element of damage and the other side rejects it, the subsequent new trial should be limited to that element of damage subject to the award of remittitur.
Thus, the Fifth District reversed the new trial order on “all” damages, and limited the new trial simply to future medical damages as that was the subject of the remittitur.