The Week in Torts – Cases from the Week of June 9, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 23
CASES FROM THE WEEK OF JUNE 9, 2017
FLORIDA SUPREME COURT STRIKES DOWN CAPS ON NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE INJURY CASES, FINDING THAT THE CAPS VIOLATE–AS THEY DO IN WRONGFUL DEATH CASES–EQUAL PROTECTION.
North Broward Hospital District v. Kalitan, 42 Fla. L. Weekly S642 (Fla. June 8, 2017):
Based on the Florida Supreme Court’s decision striking down the medical malpractice caps on damages in wrongful death cases in Estate of McCall v. United States, the Fourth District had ruled similarly in applying the caps in injury cases (where there was no death). It similarly struck the caps below.
The supreme court agreed with the Fourth District and its analysis. It found that arbitrary caps on noneconomic damages were not rationally related to alleviating the “purported” medical malpractice crisis articulated by the legislature.
The court further found that while there may have been a legitimate state objective at the time of the enactment of the statute as it did in McCall, it noted there is a lack of evidence demonstrating how the statutory cap has in any way alleviated that crisis, thereby ruling that the cap failed the rational basis test.
In McCall, the caps disproportionately and negatively impacted cases where there were multiple survivors without a rational basis.
In this case, the supreme court found the arbitrary classifications drawn for awards to surviving victims unreasonably and arbitrarily limit the recovery of the most catastrophically injured persons, based on a speculative experiment to determine whether liability insurance rates will decrease. Thus, the court said it failed to see how singling out the most seriously injured medical malpractice victims for less than full recovery, bore any rational relationship to the legislature’s stated goal of alleviating the financial crisis in the medical liability insurance industry.
After Kalitan, there are no longer any caps on non-economic damages in medical malpractice cases. Now perhaps the Florida Supreme Court will revisit the constitutionality of “caps” in the context of medical malpractice arbitration.
COST AWARD REVERSED FOR FAILURE TO SHOW COST WAS “REASONABLY NECESSARY” TO DEFENDING OR PROSECUTING THE CASE AT THE TIME THE ACTION PRECIPITATING THE COST WAS TAKEN.
Gualtieri v. Keyser, 42 Fla. L. Weekly D1234 (Fla. 2nd DCA May 31, 2017):
The trial judge awarded the plaintiff costs for the digital video editing as well as fees to compensate six experts. The Sheriff defendant appealed.
The Statewide Uniform Guidelines for Taxation of Costs requires that the party requesting costs to demonstrate that the cost was “reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.”
The Sheriff argued that the plaintiff did not meet her burden to show that video editing was reasonably necessary to prosecute the action. The court agreed.
Additionally, the plaintiff–even in the face of the Sheriff’s call for an evidentiary hearing regarding the expert witness fees–failed to offer any testimony in support of her request for fees. As a result, the appellate court struck those fees from the cost judgment.
TRIAL COURT ERRED IN DENYING MOTION FOR ATTORNEY’S FEES PURSUANT TO A NOMINAL PROPOSAL FOR SETTLEMENT.
Taylor Engineering v. Dickerson Florida, 42 Fla. L. Weekly D1240 (Fla. 1st DCA May 31, 2017):
As an initial matter, the trial court originally struck the proposal for settlement finding it was not made in strict compliance with the content requirements of rule 1.442(c)(2). However, while the appeal was pending, the Florida Supreme Court decided the Borden Dairy case, 202 So.3d 391 (Fla. 2016) which relaxed those requirements a little.
Additionally, the plaintiff offered that defendant’s proposal was a nominal offer that was not made in good faith and therefore should not be a basis for fees.
The court rejected this. When an offeror has a reasonable basis to believe that exposure to liability is minimal, courts have held that a nominal offer is appropriate.
In this instance, the court found that was the case, and therefore pursuant to the “minimal-exposure” standard, the court had to evaluate the offer on remand to see if it was made in good faith or not.
FOURTH DISTRICT REVERSES DIRECTED VERDICTS ENTERED ON AGENCY, IN FAVOR OF PLAINTIFFS AGAINST THE OWNER OF A CONCIERGE MEDICAL PRACTICE, AND ALSO REVERSES THE DENIAL OF THE CONCIERGE PRACTICE’S DIRECTED VERDICT ON THE ISSUE OF FRAUD.
MDVIP, Inc. v. Beber, 42 Fla. L. Weekly D1248 (Fla. 4th DCA May 31, 2017):
The plaintiff and his deceased wife had joined MDVIP, a concierge medical practice that their physician joined. At trial, the jury heard plaintiff’s fraud claim, arising out of certain fact statements that the concierge practice defendant had made. Some of these were “promises” that plaintiff would be seen by the finest national specialists with advanced treatment, that the practice was associated with the best hospitals and doctors nationwide, that it was part of a network fraternity of some of the nation’s finest physicians, defining the meaning of an exceptional doctor, among other things. The trial court had denied the defendant’s motion for directed verdict on the fraud claim based on these representations. However, the Fourth District reversed, finding that a claim for fraudulent misrepresentation is only actionable if predicated upon a material fact and not on mere opinion. The court refused to find these aforecited statements met the standard.
On the issue of whether the doctor was an apparent agent or part of a joint venture with MDVIP, the trial court had granted plaintiff’s motions for directed verdict. However, the court also reversed those rulings, finding there was no direct evidence that the plaintiff had read the Frequently Asked Questions document stating that the doctor owned the practice, or other statements supporting an agency or joint venture relationship. Because the court found there were fact questions on these issues, the court reversed those directed verdicts also.