Articles Posted in Wrongful Death

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.

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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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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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.