In a recent Florida brain injury case, a teenager suffered permanent brain damage after her treatment for hydrocephalus at a Medical Center and Children’s Hospital. The teen had been diagnosed with hydrocephalus at 12 years of age, caused by a tumor creating a build-up of excess cerebral spinal fluid in the brain. To assist with the blockage, she underwent surgery, which went well. Another procedure was Expanse of brainscheduled two years later to address the scar tissue left by the first procedure and remove the blockage building back up.

Before she could undergo surgery, she began vomiting and experiencing painful headaches. The girl’s parents called the children’s hospital, which advised them to take her to the nearest hospital for a CT scan, if they could not make it to their facility. The daughter arrived by ambulance and was labeled as an “urgent” status rather than emergent or non-urgent status. The treating doctor in the medical center ordered a CT scan and examined the teen. The physician noted a normal pupillary exam with no deficits to her eyes. Another eye exam was performed, which again showed her pupils reacted to light and were equal to each other. When the CT scan results came out, the radiologist determined the teen’s hydrocephalus was worsening based on a comparison to a scan taken six months earlier. Despite this, the treating physician at the center called the teen’s pediatrician and reported her condition as “stable.”

Transit from the medical center was arranged between the children’s hospital and the medical center. Within the hour and twenty minutes between the call from the treating physician and the estimated pick-up time by the helicopter, the teen began vomiting and experiencing a low heart rate. This was relayed to the children’s hospital and medical center staff. The teen was then placed on the helicopter 25 minutes after the estimated arrival time and examined by medical staff onboard. The nurse determined she had a decrease in speech but was able to respond to her mother by nodding her head. The teen was taken straight to the ER, but she arrived in critical condition and had to undergo an emergency ventriculostomy. Even though the procedure saved her life, the teen suffered permanent brain damage with great mental impairment. The teen is no longer able to feed herself, nor is she able to live or work independently.

Section 627.727, Florida statutes delineates the requirements for (UM) uninsured motorist coverage – specifically how an insurer must document the rejection of coverage. The insured can select UM coverage lower than the bodily injury liability limits of the policy or reject coverage entirely, but she or he must do so through writing. In a recent Florida car accident case, No. 4D17-332, the court looked at whether an insurance company failed to follow the UM statutory guidelines. The insured purchased uninsured motorist (UM) coverage for two vehicles. He filled out an online form, which did not allow him to sign anything, nor did it provide the ability to reject or deselect non-stacked coverage. The signing page also did not have warning language, as required by law. The appellate court determined the insurer failed to comply with the written notice carprovisions, and as a result, the insured did not knowingly reject stacked coverage or accept non-stacked UM coverage.

The trial court judge found the documentation used by the insurance company did not comply with the specificities of Florida statute 627.727. The written notice with warning language was to be in a 12-point font and signed by the insured. The warning page did not have a signature line for the insured and was not signed by the insured. A different page had a signature but only incorporated the required warnings by reference. The judge also noted the online form did not allow a user to un-select the automated waiver of stacked coverage. The judge granted the insured’s motion for summary judgment, and the insurer appealed. The insurer did not argue against any of the judge’s findings on appeal, instead claiming the policy-holder orally rejected the stacked UM coverage. The case went on to be tried on the oral rejection issue alone, with a jury verdict in favor of the insurance company.

Section 627.727, Florida statutes is filled with very specific requirements preceded by the word “shall,” strictly limiting the interpretation to what is within the body of the statute. The appellate court noted this was all written with the intent to promote UM coverage and avoid costs borne by the taxpayer after car accidents. The court stated the legislature understood the short attention span of the average consumer and the need for essential information to be relayed efficiently and prominently, thus coming up with the specific requirements. Various appellate courts and the state’s supreme court reviewed these statutory mandates and found them to be acceptable. The legislative history shows this to be a compromise between keeping drivers adequately covered in the event of a UM accident and the insurance companies’ competition.

Businesses are expected to exercise reasonable care over their premises, providing inspection, maintenance, repairs, or warnings of any foreign object or substance. If the business fails to provide this to its customers, and this failure results in injuries, the property owner or manager can be held liable for the injuries and expenses incurred as a result. A Fourth District StorefrontCourt of Appeal case reviews the type of proof needed in a premises liability action for a successful result for the injured person in Decision No. 4D16-3413.

The plaintiff slipped on liquid laundry detergent while in a “big box” store. His injury resulted in incurred medical expenses. The injured person described the person in front of him as carrying a “leaking” laundry detergent bottle, which spilled the substance on which he slipped. The injured person filed suit against the store, alleging negligence, and won $250,000 in damages. The trial court judge denied all post-trial motions made by the store, which appealed the verdict in favor of the injured person.

The store argued on appeal that the court should have granted its motion for a directed verdict. The store claimed the injured person failed to sufficiently plead a prima facie case for negligence by using the theory of negligent mode of operation. The injured person countered that the store’s operation was negligent because of its policy of using a high-gloss finish on its floors, resulting in a constant wet-look finish. This persistent wet look makes it increasingly difficult for patrons to be able to see translucent liquids, due to the reflection off the floor caused by the bright lights.

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The Florida District Court of Appeal recently issued a decision in an appeal stemming from a final arbitration in a Florida wrongful death medical malpractice case. The arbitration panel awarded economic damages for loss of companionship and guidance to the husband and child of a deceased woman. They also awarded the maximum statutory limitation for the non-economic damages of lost support. The defendant hospital appealed the damages in favor of the deceased’s relatives, claiming the panel erred in its award.

The estate filed suit against the hospital and treating doctor, alleging their collective negligence led to the death of the pregnant woman. The estate agreed to participate in a binding arbitration to Family togetherdetermine damages, pursuant to section 766.207 of the Florida Statutes (2014), which sets limits on the amount of damages awarded. Noneconomic damages are limited to a maximum of $250,000 per incident, for each claimant. Net economic damages are offset by any collateral source payments and include 80 percent of wage loss and earning capacity and past and future medical expenses, among others.

The parties agreed to the maximum $250,000 each in noneconomic damages for the husband and daughter, so the arbitration panel reviewed what should be awarded for loss of services, support, and attorney’s fees. On appeal, the hospital argued the estate expert’s inclusion of loss of guidance and companionship analysis was an attempt to value non-economic damages, which had already been awarded. The hospital also objected to evidence offered of the wife and mother’s goals and aspirations through a vocational expert as an effort to go around the cap on noneconomic damages.

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A successful personal injury trial for a plaintiff primarily hinges on whether or not the fact finder believes it is more likely than not the defendant(s) caused the resulting injury due to negligent behavior that falls short of a legal duty. While a jury is given great discretion in the type of facts they find to be true and supportive of a claim or defense, the trial court can make a determination at the end of each party’s presentation of evidence on whether or not the facts presented meet the set legal standard. If the facts fall short of the legal requirements for a successful claim, the court wet storefrontcan issue a directed verdict. If this occurs at the end of the trial, it can override a jury verdict.

A motion for a directed verdict in a Florida slip-and-fall lawsuit was recently considered in a Florida Third District Court of Appeal decision. The grocery store argued on appeal it was entitled to a directed verdict because the injured party’s evidence fell short of showing the store had actual knowledge of the dangerous condition or that one of its employees caused the dangerous condition to occur. The Court of Appeal agreed, reversing the million-plus jury verdict and remanding the case for a new trial.

The injured person fell during a shopping excursion with her husband. The 70-year-old lady realized she forgot some items while in line to check out. Her husband went to find these products but also decided to buy some other things and order a sandwich. During this period, his wife went to find him after he took so long to return, falling and slipping on some water. She did not notice this water prior to the fall. When the husband returned to the checkout area, he found his wife sitting in a chair crying. The husband testified he remembered seeing a man with a “mop in his hand,” but he did not specifically recount what he was doing. The wife also testified she saw an employee with a mop in his hand, but she failed to provide any details beyond this description.

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Civil courts have the power to sanction parties if actions taken or not taken during a litigation period are egregious to the process. A recent Florida uninsured motorist accident appeal heard in Florida’s Fifth District Court dealt with a sanction issued by the trial court to the party. The appellate court felt dismissing the action with prejudice was too harsh a penalty for the concerning behavior.

The plaintiff was injured by an uninsured motorist on a highway in 2014. The injured person’s policy provided $250,000 worth of uninsured motorist coverage. His insurance company denied his Highwayclaim for benefits, and the injured person filed a breach of contract claim against his insurer. During the discovery phase, the insurance company subpoenaed the injured person’s medical records and history, insurance claim history, and employment history.

As a courtesy, the injured person advised the defendant insurer that he was scheduled for surgery within a few weeks. The insurer asked for a compulsory medical examination (CME) prior to the scheduled surgery, and it offered two dates for this to occur prior to the procedure. The injured person advised he could not make either date. The insurer then asked the court to mandate the injured person to undergo the CME, asserting there was insufficient time for it to conduct one before the injured person’s surgery. The trial court granted the motion, ordering the injured person to undergo the CME or delay the procedure. The trial court also required the insurer to provide two more dates for the CME.

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Many Florida car accident cases do not make it to a trial in front of a selected jury. Often, the parties can reach a settlement agreement before a lawsuit is even filed, ideally to the satisfaction of both parties involved. The Fourth District recently reviewed a settlement agreement between an auto insurer and a plaintiff injured in a car accident. The injured person appealed the enforcement of a Signing Paperssettlement agreement, arguing they did not have a “meeting of the minds,” or a mutual understanding of what was agreed upon, thus voiding the contract.

The defendant in the lawsuit was insured under a policy with a $25,000 limit for bodily injury per person, a $50,000 limit for bodily injury per accident, and a $10,000 limit for property damage. The injured person’s counsel submitted a demand letter to the insurance company, asking for the policy limits of $50,000 for bodily injury and $10,044 for property loss. The letter also requested an affidavit from the at-fault driver to establish she had no other insurance coverage available, along with a copy of the insurance policy. No release was included with this letter.

The auto insurer accepted the offer and provided the injured person with all of the requested documents. The insurer provided a proposed release and asked that it be signed by the injured person and his mother. The letter specified signing the release was not required for the case to settle and was not a counter offer or new terms. The injured person rejected the proposed release and requested a “standard” release. A second letter was issued by the insurer with two proposed releases. One was an edited version of the first release, and the other was a standard release created by a section of the Florida Bar.

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Florida allows parties to utilize arbitration to bypass the civil court system. If two parties agree through a formal contract, they can use an arbitrator to decide any conflict that arises during the course of their relationship. The decision by an arbitrator would be as binding as if a decision were rendered through the state’s system. This month, the state’s Fifth District Court of Appeal assessed an arbitration agreement at a health and rehabilitation center following the death of a resident.

The deceased entered the defendant facility in 2015, when her daughter and power of attorney signed an admission agreement that included an arbitration agreement. This agreement stated the parties would use arbitration to settle any disputes, waiving the right to resolve the matter in residential carea court of law. The resident died a little over a month after her admission, and the estate filed a Florida wrongful death case. The estate specifically alleged the center failed to comply with the Florida Nursing Home Resident’s Rights Act. The center moved to compel arbitration, per the agreement, but the estate responded by claiming the agreement signed was void.

The estate first argued the arbitration agreement was void because it required the application of the Alabama Rules of Evidence, even though the center was in Florida and required the application of Florida’s laws of remedies, evidentiary burden of proof, and substantive law. The estate asserted this wrongly limits the ability to recover compensatory damages because Alabama limits recovery for wrongful death to punitive damages. The estate then pointed to the required application of the Alabama Rules of Civil Procedure to pre-hearing discovery, which also incorrectly limited the estate’s discovery to omissions or negligent acts identified at the beginning of the lawsuit. The trial court agreed with the estate and found the agreement was void and against public policy. The court found the provisions could not be severed from the agreement because it would create confusion about which rules of evidence to apply. The center appealed.

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Before a trial, there are many instances of communication that occur between the injured party and the defendant’s auto insurer. Sometimes a defendant’s insurer will offer to provide the Personal Injury Protection (PIP) Benefits or an amount within the policy limits early in the negotiating phase of the process. These settlement agreements often come with language requiring the party accepting funds to waive their right to pursue a civil action related to the matter at hand. A recent Third District Court of Appeal decision (No. 3d17-891) covers the considerations an party injured in a Florida car accident should make when discussing a settlement.

In this lawsuit, a party injured in a car accident filed suit against the policy holder. The defendant’s auto insurer sought permission to intervene so that it could seek enforcement of a settlement agreement it believed Desk fileshad been reached between the injured person and the defendant before a personal injury action was filed. The plaintiff was injured on December 24, 2013, treated at a hospital, and discharged in January. Soon afterward, the defendant’s auto insurer sent a letter to the injured person’s counsel, offering to provide the $10,000 bodily injury policy limit to settle the claim against the insured. The letter included a check and a standard release payable to the injured person, his attorney, and the treating hospital. The insurer provided an explanation for its inclusion of the hospital, stating it noticed a lien for the provided medical services. The injured person and his counsel did not respond, nor did they cash the check.

In the following year, the injured person retained a new attorney, who notified the insurer he was the counsel of record and presented a demand for the full policy limits. The attorney requested a settlement draft to his office by the end of the month, and the insurer indicated its willingness to comply and accept modifications to the letter. Another letter was sent, similar to the first one, with a check payable to the injured person, the attorney, and the hospital. The new attorney believed the payment to be a counteroffer, since it included the hospital as a joint payee, and rejected the settlement payment. The insurer and attorney continued to exchange communications, debating about whether or not a settlement had been reached. The insurer issued two more checks with the hospital removed as a co-payee. The injured person rejected both payments. The insurer then filed a motion to enforce the settlement. The matter was heard, and the insurer’s motion was granted to dismiss the lawsuit against the at-fault driver with prejudice, subject to the terms of the settlement agreement. The injured person appealed.

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A Florida personal injury judgment against an aesthetician and a spa was recently upheld by the Fourth District Court of Appeal. In Case No. 4D16-2530, a woman was injured after a facial at a spa went very wrong. The injured customer filled out a form advising she had the skin condition rosacea, which is a chronic inflammation of the face. Prior to the treatment at the spa, the condition was mild with only a rosy flush in Covered faceher cheeks. The aesthetician performing the facial admitted she did not read the form before the procedure, and if she had been aware of the condition, she would have used a different product or performed a test on a part of her face.

The plaintiff stated her face felt like it was burning during the procedure and continued to burn afterward. The injured woman’s face oozed and remained bright red. During the trial, the injured woman’s face was bumpy and easily turned red whenever the temperature increased or she was out in the sun. The pattern of bumps and redness were in the exact shape of the burn to her face. The woman testified at trial that before the injury, she had smooth skin and never wore makeup. After the incident, people would inquire if she was all right any time her face became red, asking what was wrong. The plaintiff stated that she now has to wear makeup to feel comfortable in public, and she has become more shy and awkward as a result of her appearance.

At trial, the injured woman presented several expert witnesses to the jury to help document the history and worsening of her skin condition. Her treating dermatologist related that her condition was mild and had been improving prior to the facial. Following the peel, he diagnosed her with severe irritant contact dermatitis, prescribing an antibiotic cream. The dermatologist tracked the continued inflammation and hyper-pigmentation in the months after the peel. A plastic surgeon also testified, describing his examination of the plaintiff after the chemical peel. He stated that her face had been permanently damaged because the peel removed the skin’s protective barrier. He opined that the disfigurement and scarring were permanent and that she’d need a lifetime of dermatological care to control the outbreaks of her skin. He stated she could never return to her appearance before the peel.

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