Articles Posted in Wrongful Death

When you file a Florida wrongful death action, the allegations themselves must meet certain criteria set by statutes and case law. The defending party must have notice of the allegations against them in order to appropriately prepare a defense for themselves. The allegations are all written in a complaint, which is filed with the civil court that has jurisdiction over the matter. These complaints must dictate a cause of action supported by law.

The Second District recently reviewed the dismissal of a complaint in Case No. 2D16-3615, filed by the Internal machinerypersonal representative of an estate against a hospital with allegations of vicarious liability, breach of a non-delegable duty, and negligence. The representative filed suit against several doctors and health care providers under the theory the deceased died from complications following a surgery at the defendant hospital to repair a hernia and succeeding procedures provided by other physicians at other hospitals. The trial court dismissed the case against the hospital where the first procedure was performed, and the estate appealed.

The deceased sought care from the defendant hospital, undergoing a procedure to repair his paraesophageal hernia. The surgeon used a surgical robot provided by the defendant hospital. During the operation, a part of the robot detached and became embedded in the deceased’s esophagus, causing complications to his health over the following months and years. An exploratory procedure was performed at a different facility three years later to assess the cause of the worsening symptoms. This was ultimately unsuccessful. Another exploratory surgery was performed at the same hospital, where the deceased’s vena cava vein was ruptured, leading to a large loss of blood, a heart attack, and finally his death. An autopsy revealed a small coil around the gastroesophageal junction, leading the representative to believe a part of the robot was left inside the patient at the original operation. The representative additionally alleged the foreign object last was seen at a CT scan prior to the second surgery.

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Expert witnesses help the finders of fact understand complex concepts in a personal injury action. In order to successfully be awarded damages, an injured person must connect the injury to the requested amount. An expert must be qualified to testify as a matter of law, and they may also be scrutinized by the jury and the court. Verdicts can be set aside if a judge concludes a jury could not have rightly entered a verdict in favor of the plaintiff based on the evidence presented.  hospital roomThis is seen in a recent Florida wrongful death appeal, No. 3D16-600.

The estate filed suit against the nursing home that provided the decedent care toward the end of her life. The estate asked for $400,000 for pain and suffering, as well as nearly $91,000 for funeral and medical expenses. The jury found for the estate but only awarded $5,000 in medical expenses and $1,133 for funeral costs. The trial court set aside this award and entered a verdict in favor of the defendant nursing home. The estate appealed.

The appellate court’s majority focused on the expert testimony offered by the plaintiff to help explain the decedent’s medical condition. The physician was an expert in family medicine but did not provide care to the decedent during her life. He provided opinions solely based on a review of her medical records, but many of the ones surrounding larger issues were contradicted by the records he used to form the opinions. The appellate court concluded the central issue was whether or not the expert witness had sufficient evidentiary weight to be submitted to the jury.

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When filing a Florida wrongful death case, an estate must attempt to name all of the claims of injury against all parties. Opportunities to correct or add claims or parties in a complaint exist but must be done within a statutorily specified amount of time. A recent Fourth District Court of Appeal decision provides insight into the timing and appropriateness of these types of additions.  Winter sky

The personal representative of the estate filed suit against the hospital and treating physician, alleging both were responsible for her husband’s negligent care, which led to his death. The estate first connected the doctor’s actions to the hospital by asserting he was working under the scope of agency of the hospital. It then moved to allege the hospital owed her husband a duty to exercise due care in its hiring and retaining of independent contractor physicians like the doctor who provided care to the decedent.

After the amendment to the complaint, the hospital filed a motion to dismiss, arguing the estate was trying to raise a new cause of action. The hospital stated the amendment was not related to the agency claim and was barred by the statute of limitations. The representative countered the original claim was not centered around the concept of agency, and there were direct allegations of negligence against the hospital. The estate asserted there was no basis for the defendant to believe it was making a claim the hospital was only responsible for the injuries, based on its relationship as an employer alone. The trial court allowed the amendment to stand.

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Florida wrongful death cases stem from different types of accidents and injuries. Some may be caused by a vehicle collision, and others may occur at the hands of a negligent health care provider. In any scenario, the plaintiff and their counsel must scrutinize all of the relevant statutes that either affect the way proceedings unfold or present substantive challenges to obtaining the damages one seeks. In Florida, a medical negligence action requires a pre-suit investigation to determine whether or not there are reasonable grounds to believe the medical provider was negligent and caused the injury through this negligence.

A recently issued state Supreme Court decision analyzes one of these pre-suit requirements that allows each prospective defendant the ability to access protected verbal and written health Privacy Noticeinformation as part of their pre-suit discovery. The state’s constitution requires the injured party to authorize the release of any information that is potentially relevant to a claim of medical negligence. While irrelevant information is excluded, a claimant must still name her or his providers and dates of treatment. Failing to participate in this phase can lead to a dismissal of the claim.

Specifically at issue in this decision is defendants’ ability to unilaterally schedule an interview with health care providers if the claimant fails to do so within 15 days of a defendant’s request for an interview. Subsequent interviews can be requested to be arranged with only 72 hours’ notice. The personal representative and wife of the decedent at the center of this action filed suit against a treating physician, alleging his negligent care led to the deceased’s injury and death. From the beginning of the litigation, the plaintiff asserted the 2013 amendments allowing access to records in a medical malpractice pre-suit investigation violated the right to privacy under the state’s Constitution.

In any Florida wrongful death case, the defendant’s goal is to deny liability and eliminate or minimize damages. Many tactics are used by defendants throughout the litigation to pursue this goal, trying to prevent a family from receiving the damages they need and deserve. The Third District Court of Appeal recently issued a ruling in a wrongful death action in which two major drugstore companies asked to quash a trial court order denying a request to shift the cost of discovery to the plaintiff-estate.Medication Pile The appellate court dismissed the petitions for lack of jurisdiction, citing the defendants’ failure to show the order created irreparable harm to the defendants.

The personal representative of the estate filed suit against the two drugstores, alleging they caused the victim’s death of multiple-drug toxicity by their collective negligence in filling the prescriptions. The plaintiff eventually filed an amended complaint that alleged one drugstore company filled 275 different prescriptions by 18 different physicians, and the other filed 95 different prescriptions by 10 different physicians. A majority of the prescriptions were narcotics. Soon after this amendment, the representative sought the personnel files of the employees of each pharmacy at the time the prescriptions at issue were filled.

One company moved for the representative to pay for the time of its counsel to review and redact the financial and health information from the personnel files of 40 identified pharmacists. The other drugstore company moved for the representative to be placed on a payment plan for unspecified costs associated with gathering the personnel files of 18 identified pharmacists. The representative did not contest the need for information to be redacted but objected to both companies’ requests of the court for the estate to pay for the costs of discovery.

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Florida’s statutes for punitive damages have gone through changes over the last 20 years. A recent decision issued by the Second District Court of Appeal (No. 2D16-1603) addresses arguments centered on which version of the punitive damages statute applied in a wrongful death action. In this case, a tobacco company appealed a second amended final judgment in favor of a daughter acting as the personal representative of her mother’s estate. The daughter filed a Florida wrongful death action against the tobacco company, alleging her mother’s death was caused by the company’s negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment.

The daughter was awarded both compensatory and punitive damages. The jury found the company to be 60% responsible for the compensatory damages, awarding nearly $3 million.Gavel Resting It also awarded over $12 million in punitive damages as related to the conspiracy and concealment claims. The trial court had previously vacated the punitive damages award, which was then reinstated by the Second District Court of Appeal. Upon remand, the daughter moved for entry of the full amount into the judgment, but the company objected. It argued the punitive damages were subject to the post-1999 statutory cap. The trial court overruled the objection and entered the full amount of damages awarded, including interest. The tobacco company appealed.

The appellate court agreed with the trial court’s determination that section 768.73(1)(a) and (b), Florida Statutes (1995) applied rather than the post-1999 version that requires punitive damages to be capped at the amount that is three times greater than the compensatory damages award. The tobacco company had argued the post-1999 version applied because the daughter’s wrongful death action was based on her mother’s death in 2007. The company also attempted to argue that even if the pre-1999 version of the punitive damages statute applied, the daughter fell short of the legal requirements by not showing the damages award was supported by clear and convincing evidence.

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In Florida, an injured party or representative of an estate can pursue punitive damages in addition to compensatory damages in a Florida personal injury case if the plaintiff can show there is a reasonable basis for recovery of such damages. A defendant can only be held liable if the trier of fact finds the defendant engaged in either intentional misconduct or gross negligence. This finding must be based on clear and convincing evidence, a higher burden of proof than what is required for compensatory damages. The claim for punitive damages may be added following Florida Rule of Civil Procedure 1.190(f).

Research stackThe Third District Court of Appeal tackled a question regarding punitive damages in a recently issued decision (No. 3D17-1315). The parents and personal representatives of a deceased child filed suit against the owners, managers, and maintenance companies for the apartment complex where the fatal accident occurred. Their son died after a driveway gate fell on him. The parents moved to amend the initial claim to add one for punitive damages. Florida Rule of Civil Procedure 1.190(f) requires the plaintiffs to attach their proposed amended complaint to the motion. The parents included facts to help support their reasonable basis for recovery, but they only attached the amended complaint with the claims for punitive damages after the trial court had granted the motion to amend.

The defendants objected, and the appellate court agreed the Florida civil rule requires the party filing a motion to amend to attach the proposed amended pleading to the motion. The parents attempted to argue the rule allows plaintiffs to file a separate motion when the proposed amendment only adds a punitive damages claim. The Court of Appeal determined there’s no waiver or ability to dispense with the requirement within the body of the rule, applicable statutes, or relevant case law.

After a serious car accident, the last thing you want is unexpected challenges. An experienced Florida wrongful death attorney can help guide you through the civil litigation process when a difficult period becomes overwhelming. In a recent case (No. 3D15-2750), the parents of a child faced the stressful situation of the defendant disappearing. Their child was killed in an auto accident, and they filed suit for wrongful death. When the defendant driver disappeared, the parents were unable to hold him accountable. Nevertheless, the parents continued their lawsuit.  Hand and wrist

The trial court entered two final summary judgments in favor of the parents. The auto insurer appealed, arguing the judgments were entered in error. The auto insurer notified the defendant driver of its reservation of rights to deny coverage, since the at-fault driver was not listed as a driver under the insurance policy. Soon afterward, the driver absconded and could not be found. The insurer notified the defendant of its reservation of rights a second time, since he failed to cooperate with the investigation. Over the course of this proceeding, several more letters notifying him of his reservation of rights were mailed. Despite this, the insurer continued to represent him for many years of the proceeding, including the post-judgment phase of litigation. The jury returned a verdict of over $15 million in favor of the parents, and the trial court entered a final judgment consistent with the verdict. The insurer then sought to decline coverage based on the defense of breach of cooperation.

The appellate court ruled that the insurer could not use this defense because it failed to follow the requirements of section 627.426 of the Florida Statutes (2015), the Claims Administration Statute. This statute prevents insurers from denying coverage unless they have sent a reservation of rights to assert a coverage defense to the named insured by registered or certified mail or hand delivery to the last known address of the insured within 30 days when they knew or should have known they needed to use the coverage defense. Within 60 days after this, or no later than 30 days before trial, the insurer must then give notice to the named insured of its refusal to defend the insured through registered or certified mail, obtain a non-waiver agreement, or retain an independent attorney who is mutually agreeable to the parties.

In the early phases of litigation, parties may move for summary judgment, arguing that the case should not move forward due to some legal preclusion specific to the type of injury. A common argument made by defendants in South Florida car accident cases is that there is no genuine issue of material fact for the jury to consider, so dismissal is the only route acceptable under the law. A trial court has substantial discretion to dismiss an action, but it is not allowed to dismiss based on the weight of the evidence for either party. If there is any factual question of whether or not a defendant or defendants could be found liable, that question must be answered by a jury.

A recent case addresses a summary judgment entered in favor of a defendant golf club that served drinks to a drunk driver who crashed into the decedent, causing her death. The decedent’s representative filed suit against the driver and the golf course that sold alcohol to the driver prior to the accident under Florida’s reverse dram shop liability statute, section 768.125, Florida Statutes (2014).Sand Trap At the time of the accident, the driver had a blood alcohol content of .302.

In its defense, the club asserted it was not liable under the dram shop statute since they did not know the club member was habitually addicted to alcohol. The club stated there was no competent evidence on record that the driver was habitually addicted, nor was there evidence the club had knowledge of her alleged addiction. In response, the representative filed depositions of the driver, a friend of the driver, and relevant employees of the club. The depositions revealed the driver played 70-80 times over a three-year period prior to the crash. The friend testified that she was intoxicated nearly every time they played together at this club. The driver often started with two strong whiskey cocktails, poured by staff of the club. The driver would then return to the clubhouse at the midpoint turn of the course for a third whiskey cocktail, all while purchasing and drinking additional alcoholic beverages from the “cart girl” employee of the club. The friend testified that on the day of the accident, the “cart girl” poured and served eight ounces of pure alcohol to the driver. The estate also submitted an affidavit from a laboratory director at the County’s medical examiner’s department. The affidavit estimated the driver’s blood alcohol content when she left the club to be .27. Despite this proof, summary judgment was granted to the club. The estate appealed.

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A Florida appellate court recently assessed an appeal stemming from an accident and negligent care that caused significant, fatal injuries. In a recent case, the personal representative of the injured person’s estate filed suit against several defendants, alleging the decedent was first injured by a malfunctioning sliding door at a drugstore, which led to her receiving inadequate care at a senior home, ultimately resulting in her death. The decedent suffered significant injuries from the fall at the drug store’s premises that were then aggravated by a second fall at the senior center. The representative initially filed two separate actions against the drugstore and the senior center but eventually moved to consolidate the two actions under Florida Rule of Civil Procedure 1.270(a).

In his motion, the representative alleged the wrongful death claim was based on successive injury-producing incidents, and both the drug store and the center contributed to the woman’s death.Book Stack The representative argued there was a substantial risk of inconsistent verdicts because one defendant could place the blame on the other defendant in each case. The representative asserted this could collectively minimize the defendants’ liability and the jury’s award of damages.

The Second District Court of Appeal looked at previous state decisions to determine whether the trial court erred when it denied the motion to consolidate. The Florida Supreme Court previously determined two separate actions involving two automobile accidents should have been consolidated because the damages could not be readily divided among the defendants in each action. (See Lawrence v. Hethcox, 283 So. 2d 41 (Fla. 1973).) The court ruled that separate actions would have increased the injured person’s challenges in proving how much each defendant was responsible. The court felt a denial of consolidation would obstruct rather than promote justice. Other district court verdicts reflect this reasoning in U-Haul Co. of Northern Florida, Inc. v. White and Hickey v. Pompano K of C Inc. Hickey had similar facts to the case at hand, in which a plaintiff suffered two separate slip-and-falls three weeks apart. The plaintiff in Hickey injured her knee, which was alleged to have contributed to the second fall that then exacerbated the first injury. The Fourth District pointed out that the defendant in each action could place the blame on the other defendant, which would result in a low verdict in one or both trials. Low verdicts are not grounds for a new trial, and the plaintiff would be blocked from an adequate remedy by appeal.

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