Under section 766.102(3)(b) Florida Statutes (2011), any foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, is prima facie evidence of negligence by the medical health care provider. Typically, in any type of personal injury lawsuit, the injured person must show that the preponderance of the evidence shows the at-fault party is liable for the injury. In a recent case (No. SC15-2294), the Supreme Court looked at whether or not the burden of proof shifts to the defendant to show that medical negligence did not occur.

This lawsuit originated from the Fourth District Court of Appeal, which found that the burden did not automatically shift from the injured patient to the doctor. The plaintiff-appellant went to the hospital for a “colon resection due to cancerous polyps.” As part of the procedure, a drainage tube was inserted into the patient’s abdomen to remove any fluid built up after the operation. Typically, the drainage tube is removed. In this case, the nurse removed the drainage tube in preparation for the patient’s discharge. Testimony revealed that the doctor may not have instructed the nurse to remove the tube, but it was certain that the nurse performed the drainage removal procedure.  Medical equipmentHospital notes showed that the patient did not experience any discomfort during the procedure, but a 4.25-inch section was accidentally left inside.

The patient was discharged but began experiencing continuing pain in the region four months after the surgery. A CT scan showed that the tube was still in his body, and a second surgery became necessary to remove the remaining piece. The patient filed suit, alleging negligence, and sought a jury instruction with the presumption of negligence under section 766.102(3)(b). The court denied the injured patient’s motion, which would have advised the jury of the shifted burden. Instead, the jury heard the standard instruction given, which states that the “existence of a medical injury does not create any inference or presumption of negligence against the healthcare provider” and kept the burden of proof on the injured person to show that the injury was proximately caused by the professional. The jury found for the defendants, and the injured person appealed both the trial verdict and the District Court’s ruling affirming the verdict.

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After caring for an injured car accident patient, hospitals look for the most expedient, maximized reimbursement available to them for payment. Personal Injury Protection (PIP) was created by the legislature, as part of the Florida Motor Vehicle No-Fault Law, to help ensure quick care for the injured person and prompt payment to the medical provider. Over the last two years, state district courts have been split over whether or not an auto insurer’s inclusion of the permissive Medicare fee schedule for reimbursement within its auto policy was sufficient notice of an election to use section 627.736(5)(a)(2), Florida Statutes (2009). The matter was recently settled by the Supreme Court in Allstate Ins. Co. v. Orthopedic Specialists (No. sC15-2298).

This appeal arose from the Fourth District, in which several medical services challenged an insurer’s reimbursements made under PIP no-fault insurance policies issued to its insured. The providers claimed the policy was ambiguous on whether the insurer was using the Medicare fee schedule allowed by law, or if it only reserved the right to elect to do so. The medical providers argued that the “shall be subject to” language made the policy ambiguous. The language of the policy stated it would pay 80% of all reasonable expenses for medically necessary services, but it was followed by the Limits of Liability, which stated that the coverage “shall be subject to any and all limitations, authorized by section 627.736.”  Ambulance ArrivalThe providers and the Fourth District felt that Florida case precedent determined that any election of a payment limitation option must be done so “clearly and unambiguously” and that the policy fell short of doing so.

The Supreme Court first looked at case law guiding any analysis of an insurance policy contract. If the language is considered unambiguous, the court is bound to interpret the policy according to the plain meaning of the language. A policy is only considered vague if there can be more than one reasonable interpretation, when one provides coverage and the other limits coverage. Ambiguous language in an insurance policy is construed against the insurance company that drafted it and in favor of the insured.

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Florida car accident trials can become intricate, complicated lawsuits to litigate. This can be seen in a recent appellate case (No. 3D13-2005) that addresses whether or not it was improper for the trial court to allow evidence of the at-fault driver’s intoxication during the compensatory damages phase of the trial. The case stems from a serious car accident in which the injured party was struck head-on by an intoxicated, uninsured motorist. The injured person’s UM policy only covered up to $20,000 per person. The injured person filed suit against the insurer for its failure to pay the uninsured motorist coverage, alongside a claim for compensatory and punitive damages against the defendant driver.

Prior to trial, both the driver and the insurance company admitted liability for the accident, and they admitted that under the law, the driver was liable for punitive damages for his actions, since he was under the influence of alcohol when he was driving. With the question of liability settled, the remaining issues were the amounts of compensatory and punitive damages to be awarded to the injured person. Compensatory damages cover costs that the injured person incurred after the accident. These can also include future damages that are reasonably certain to occur.  Car accident Punitive damages are exactly as they sound, damages intended to punish the party for egregious behavior.

The insurer moved to bifurcate, or separate, each type of issue. The insurer also moved to exclude references to the driver’s intoxication during the first trial over the compensatory damages. The court granted the first motion but denied the second, and this denial formed the basis of the insurer’s appeal. The insurer argued that the driver’s intoxication became a central theme of the first trial, and the insurer was prejudiced as a result. The injured person presented proof of his damages. He acknowledged a prior back pain condition that led to spinal surgery, and he admitted that he went a long time without medication. The injured person also acknowledged that he became addicted to painkillers after he was prescribed some after the accident. The injured person stated that he now takes suboxone to wean himself away from Oxycontin and that it costs around $560 a month. The injured person also discussed his future earning capacity, saying that he retired right before the accident, accepting a retirement package, but he also supplemented his income by working in the diving industry, earning $2,000 to $2,500 a month. The jury found for the injured person, awarding him over $970,000 in compensatory damages, including over $300,000 for future medical expenses and loss of future earning capacity.

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Obtaining the damages available in a personal injury lawsuit often goes beyond holding the at-fault party accountable. In car accident cases, the insurers to the parties in the accident must abide by certain duties while handling the case. If an insurer does not attempt to settle in good faith, the insured may file an action against the insurer.  deployed airbagOften, if the insured is the at-fault party in the original car accident, she or he will assign the claim to the injured party. This all takes place after the original car accident litigation has occurred.

In a recent case (No.4D15-4724), the insured party was in a car accident with another man who died as a result of his injuries. The insured party had a $100,000 liability policy under his name and his business’ name. After the accident, the claim was promptly assigned to a claims adjuster. The insurer also advised the insured that the claim by the decedent’s estate could exceed his policy limits and that he had the right to hire his own attorney, which the insured chose to do.

The decedent’s estate’s representative called the claims adjuster to arrange for a statement with the insured about his personal and business assets and whether he was working when the accident occurred. The representative later claimed that the adjuster refused to make the insured available for the statement, but the claims adjuster responded that she would not have refused the request. No deadline was given by the decedent’s estate to make the insured available for a statement, and the representative did not advise that the statement must happen prior to settling the claim.

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One of the important functions of a civil lawsuit is obtaining damages from the at-fault party or parties in an attempt to be made whole. Another is to hold accountable the person, people, or entity responsible. When multiple parties create a negligent environment, civil actions can become complicated. Each personal injury case poses its own unique challenges, depending on the circumstances of the accident. An unpublished federal opinion, Seaboard Spirit Ltd. v. Antwon Hyman (No. 15-12953), looks at whether or not a District Court erred by allowing the estate of a longshoreman the ability to sue the ship owners after he was killed while aboard a cargo ship, helping to unload a vessel.

The estate filed a negligence action against the owners of the ship he was aboard, even though they had filed to be exonerated from the lawsuit. The shipowners had loaded a shipping container in the Bahamas, using a third-party stevedore, or loader.  The crew aboard the ship secured the container, but one of the chains securing it was too tight.Docked Ship When the ship arrived, the deceased man’s employer, a stevedoring company, began to unload the ship. The deceased worker was in charge of safety, so he walked up next to the trailer between the wall of the ship and the trailer, removed the wheel chocks, and verbally gave the OK to the mule driver to drive. Since the trailer was still lashed down, it shifted to the side and pinned the longshoreman against the wall, crushing him to death.

The ship owners filed under the Limitation of Liability Act to be exonerated from liability, claiming that they were not responsible for the worker’s death. The estate protested, arguing that the ship owners were liable under the Longshore and Harbor Workers Compensation Act (LHWCA). The estate alleged that the ship was responsible because the crew helped secure the cargo in the Bahamas, acting as an on-loading stevedore. The District Court agreed with the ship owners that their actions in on-loading and securing did not proximately cause the accident that resulted in the longshoreman’s death. Instead, the court found that the longshoreman was responsible for his own death by choosing to place himself between the wall and the trailer. Even with these findings, the court found that the estate may file a separate lawsuit against the shipowners.

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The Supreme Court in Florida recently settled a division among the District Courts of Appeal on whether or not a medical malpractice arbitration agreement was void when it included terms only favorable to the hospital. In Hernandez v. Crespo (No. SC15-67), the Supreme Court determined that any arbitration agreement that left out required provisions of the Medical Malpractice Act and was only favorable to medical providers was void as against public policy. The Fifth District had previously held that the agreement was void, but the Second District had held that an arbitration agreement in Santiago v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014), was not void as against public policy because the parties did not invoke the statutory arbitration scheme.

This appeal stemmed from the injury suffered by a 39-weeks pregnant woman who was turned away from her doctor’s appointment because she was a few minutes late. The appointment was re-scheduled four days later. On the day before the rescheduled appointment, the patient delivered her stillborn son. Contract Signature LineA little over a year later, the patient provided notice to the hospital and the treating physician that she was initiating litigation. Over the next five months, the hospital and doctor denied the claim and moved to compel arbitration, pursuant to the agreement between the patient and the medical center. The agreement was signed by the patient and the Chief Medical Officer on behalf of the medical center, but not by anyone else. Two months later, the patient and her husband requested binding arbitration under section 766.207, Florida Statutes, which was declined by the hospital and physician.

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Personal injury lawsuits must prove four things:  that there was a duty created by statute or case law and that the at-fault party was obligated by the duty, that the at-fault party failed to uphold that duty, that injuries resulted from this failure, and that a certain amount of damages were incurred from the injury. While it is essential to prove the first three elements in order to obtain monetary damages, it is equally important to provide thorough proof of the damages. Amounts already incurred are relatively easy to prove with invoices and receipts of payment. Future damages, however, must be shown through expert testimony to be reasonably certain.car crash windshield

The trickiness of this task can be seen in GEICO v. Isaacs (No. 4D15-2263). In this case, a woman filed suit against her insurance company for uninsured benefits, including past and future medical expenses and pain and suffering. A jury awarded $750,000 for medical expenses and pain and suffering. $360,000 of these damages were designated as the future medical expenses award. The insurer moved for the damages to be reduced, claiming the award was excessive.

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In Florida car accident cases, it is commonplace to see an insurance company indemnify, or take on a personal injury action on behalf of its insured. It is not often a hospital takes on a claim on behalf of a patient, but it happened in the recent Florida Court of Appeal case, Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Association (aka NICA), No.1D16-32. The appellate court certified the hospital’s ability to sue as an interested third party because it had a direct economic interest in avoiding civil litigation and liability for injuries that might otherwise be covered by NICA, § 766.302(2), Fla. Stat., an Act that provides benefits to qualifying infants with birth-related neurological injuries.

NICA issues benefits to infants who suffer an injury to the brain or spinal cord caused by oxygen deprivation or a mechanical injury during delivery that results in a permanent and substantial mental or physical impairment. Hospital birth A baby from a single gestation must weigh at least 2,500 grams (approximately 5.51 pounds) at birth. A baby from a multiple gestation must weigh 2,000 grams (approximately 4.41 pounds) at birth. A disability or death due to a genetic or congenital abnormality is not covered by NICA.

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Part of the proof that must be presented in a Florida car accident case are the damages that one suffered as a result of the accident.  These include lost wages, medical expenses, and future medical expenses.  The Fifth District Court of Appeal recently reviewed a directed verdict regarding damages in favor of an injured driver in Auto Club Ins. Co. of Florida v. Babin (Case No. 5D15-1337). In this case, the man was injured in a multi-car rear-end collision.  The first at-fault car in this chain was underinsured, and the driver filed suit against the driver and his insurance company.  Rear-ended carThe company did not deny that the driver was at fault but did not think the injured man was entitled to all the damages awarded.

At trial, the injured motorist asked to be compensated for his past lost wages, his diminished future earnings in owning a scuba-diving business, and a future back surgery.  The jury awarded $120,000 in past medical expenses, $70,000 in past lost earnings, $160,000 in future medical expenses, $72,000 in lost earning ability for future years, and $30,000 for past and future pain and suffering.   The insurer appealed the damages for future medical expenses, past lost wages, and future earning capacity.

The injured driver submitted expert testimony that he may need two-level reconstruction if the conservative therapy failed.  The doctor testified that the injured man’s back was not quite at a level of dysfunction that he thought surgery was certain, even though the x-rays of the injured man’s back revealed a “mess.”  The insurer argued that this testimony showed the need for future medical surgery was too speculative and did not meet the requirements under Florida law for damages to be necessary.  The appellate court agreed, finding that the proof provided failed to show the future surgery on the injured man’s lower back was reasonably certain to occur.

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When an accident happens while working, one generally counts on insurance to be available through one’s employer.  A Fourth District Court of Appeal case, Gelsomino v. Ace American Ins. Co. (No. 4D14-4767), deals with the nightmare scenario of an employee seriously injuring himself in a car accident, only to find that the broker tasked with obtaining insurance for his employer failed to do so properly.  In this case, the Court of Appeal reversed a directed verdict granted by a trial judge after a jury found for the injured worker.  Physical TherapyThe injured worker was employed by his brother’s construction business, which built interiors of hotels.  The original business was based in Florida, and a new one was formed in order to do business in the Bahamas.  After incorporation, the owner used a broker to obtain an insurance policy, informing the broker that the company was located in Jacksonville, FL and was an agent for the Bahamian company.  The business paid for the policy and received a certificate of insurance identifying the Bahamian company as the insured.  However, the policy listed the Florida company as the insured.

The injured employee broke all the bones in his foot in a car accident that occurred on the way to the airport in the Bahamas.  Afterwards, he called the broker to file his claim, but he was told his claim was denied, since he wasn’t insured. The injured man eventually filed suit against the broker for negligence in procuring the policy for the Bahamian company.  The injured man claimed that he relied upon the Certificate of Insurance and that he was out medical expenses and lost wages.  The injured man argued that at trial, he raised the issue of damages stemming from the broker’s negligence, but the broker only mentioned it during the motion for directed verdict after the jury verdict in favor of the injured employee.  While the jury found the injured man and his brother shared in the liability, it ultimately found the injured man incurred lost wages of over $73,000, past medical expenses of  $10,000, and future medical expenses of $151,370.  The broker was determined to be 35% responsible for the injuries.  The broker argued that the injured man did not prove damages and that any damages proven would be limited to the policy limits.

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