Court Finds Transport Injury Is Not Malpractice

In an ongoing case from Broward County, a Florida appeals court rejected, for now, a negligence defendant’s efforts to treat the plaintiff’s claims as malpractice. The plaintiffs are a husband and wife. The defendants are a medical practice and one of its employees.

The wife, who is 99 years old, suffers from skin cancer. Her primary care physician referred her to the defendant’s clinic for regular radiation treatments. The defendant provided a van to transport the wife from her residence to the clinic.

Typically a clinic employee would take the plaintiff by wheelchair from the lobby of her building to the van, which had an automatic lift. But on the day in question a different employee–whose the plaintiff had apparently never seen before–told the plaintiff to “follow her” on foot rather than take a wheelchair. According to the plaintiff, as she followed the employee to the van, she tripped over a parking bumper and suffered “severe and permanent injuries.”

The plaintiffs sued the defendants, alleging their negligence in transporting the wife–i.e., not providing a wheelchair and failing to warn her about the parking bumper–caused her injuries. The defendants moved to dismiss the lawsuit, claiming this was really a medical malpractice case and the plaintiffs had failed to follow Florida law applicable to such claims. The trial court denied the defendants’ motion, prompting them to file a petition with the Florida Fourth District Court of Appeals.

But the Fourth District also rejected the defendants’ position. While there are cases where injuries sustained while transporting a patient are considered malpractice–e.g., moving a patient from a gurney to an X-ray table at the hospital–the facts alleged by the plaintiffs here “do not support a theory that injury occurred while a medical diagnostic or medical treatment procedure was occurring.” And even if transporting the plaintiff by van was the result of a medical judgment, the Fourth District said the defendants have not established any “professional standards of care” applicable to such situations. Accordingly, the court dismissed the defendants’ petition without prejudice, meaning the clinic could renew its objections to the lawsuit if “a revised complaint or discovery” establishes the plaintiffs “cannot prove their case without establishing a violation of a professional standard of care.”

Speak With a Florida Medical Malpractice Lawyer Today

Malpractice cases are difficult enough to win in Florida. If you are injured due to a medical provider’s ordinary negligence, you should not have your case dismissed due to an improper malpractice classification. If you have been injured due to any interaction with a health care provider and need to consult with a Clearwater medical malpractice attorney about how to proceed, contact the Law Office of Paul B. Genet, P.A., at 727-510-8802.

Source:

scholar.google.com/scholar_case?case=4106765417423427288

Since the 1920s, Florida courts have applied a “dangerous instrumentality doctrine” when assessing liability for auto accidents. Basically, this doctrine holds that the owner of any motor vehicle is vicariously liable if they “voluntarily entrust” said vehicle to a person “whose negligent operation causes damage to another.” The idea behind this rule, as the Florida Supreme Court has explained, is that “the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources” to pay for any damages arising from the vehicle’s negligent use, even if the owner is not actually operating the car at the time.

Judge Says UPS Can Stand Trial Over Fatal Jacksonville Accident

There are some exceptions to the dangerous instrumentality doctrine. One is known as the “shop exception,” which applies when the owner of a vehicle entrusts his or her vehicle to a “repairman or serviceman.” In other words, if you take your car to the shop for repairs, and while the vehicle is in the shop’s custody one of its employees gets into an accident, you will not be held liable. This exception only applies, according to the Supreme Court, if the owner “does not exercise control over the injury-causing operation of the vehicle during the servicing, service-related testing, or transport of the vehicle, and is otherwise not negligent.”

Recently a federal judge in Jacksonville rejected a defendant’s effort to invoke the shop exception in an ongoing car accident case. The underlying accident took place in 2013, when a UPS package car struck another car while driving on Interstate 90. The other car “careened off the road and crashed into a tree,” according to court records, which killed a married couple and injured their grandson.

The estates of the deceased and the parents of the minor child sued a number of parties for wrongful death and personal injury, including UPS as the owner of the vehicle that caused the accident. UPS moved for summary judgment, arguing that at the time of the accident, the package car was driven by an independent contractor hired to deliver the vehicle from its manufacturer to UPS. In fact, the driver was actually sub-contracted by another contractor hired by UPS, which maintained it had no control over the driver’s actions.

But as the judge explained in an order denying UPS summary judgment, this is exactly the scenario contemplated by the Florida Supreme Court in creating the dangerous instrumentality doctrine. Ultimately, the subcontractor operating the vehicle was a “permissive user,” and that meant that UPS could be held liable for her negligent operation of the package car. The shop exception only applies to “servicing or repairing the motor vehicle itself,” not delivery from the manufacturer, as is the case here. Indeed, the judge noted that UPS–a package delivery company–could have had one of its own drivers deliver the car, and the subcontractor was therefore providing a service for the convenience of UPS.

Have You Been Injured in a Florida Car Accident?

If you are seriously injured in an auto accident, Florida law allows you to seek compensation from the owner of the vehicle responsible for the accident. An experienced Clearwater auto accident attorney can help you fight for your rights. Contact the Law Office of Paul B. Genet, P.A., if you need to speak with someone today.

Resource:

https://scholar.google.com/scholar_case?case=1346378335429314959&hl=en&as_sdt=6,47

Nursing home abuse is sadly an all-too-common problem in Florida. Many elderly nursing home residents are victims of abuse, neglect, and poor living conditions. To protect themselves, many nursing homes try to avoid abuse-related lawsuits by pressuring residents to agree to binding arbitration. In many cases, a nursing home resident may sign away valuable legal rights without realizing it.

Nursing Home Not Entitled to Benefit From Assisted Living Facility’s Agreement

While courts generally will enforce nursing home arbitration agreements, there are limits, and victimized residents (and their families) should not hesitate to challenge bogus arbitration demands. Here is a recent example from here in Florida. This case actually involves the estate of a now-deceased former nursing home resident who was allegedly the victim of negligence.

The decedent originally signed an arbitration agreement when she became a resident of an assisted living facility (ALF) in Brandon, Florida. This agreement required “any and all claims or controversies” arising from the decedent’s “stays at the Facility” be submitted to binding arbitration. In the event the decedent was “transferred” and later “readmitted” to the facility, the arbitration agreement would still apply to “this and all future admissions.”

At some point, the decedent was transferred from the ALF to a skilled nursing facility (SNF) located in the same retirement community. It was during her stay at the SNF that she allegedly suffered her injuries. When the decedent’s estate subsequently sued the SNF, it argued that its “affiliation” with the ALF entitled it to the benefits of the arbitration agreement. A trial court agreed and granted the SNF’s motion to compel arbitration.

But the Florida Second District Court of Appeals disagreed and reversed the trial judge’s decision. The SNF was not a party to the arbitration agreement. Nor was it in an “identified class of persons expressly intended to benefit from the arbitration agreement,” according to the Second District. And even if it was an intended third-party beneficiary, the Second District said the claims raised by the estate’s lawsuit still do not fall within the scope of the arbitration agreement.

The agreement itself specifically refers to controversies arising from the decedent’s stay at “this Facility,” meaning the assisted living facility and not the SNF, the Second District concluded. Nor does the “readmission” language apply to this case, as the decedent’s admission to the SNF was a separate event, not a readmission to the ALF. Accordingly, the Second District said the estate could proceed with its lawsuit against the SNF.

Get Advice From a Florida Nursing Home Abuse Attorney

Nursing home abuse can be devastating for victims and their families. When you entrust a loved one to a nursing or assisted living facility, you expect them to be well care for. If that is not the case, you should have access to the courts to seek justice. Arbitration agreements have their place, but not when a person has not freely and expressly agreed to waive their constitutional rights. If you have questions or concerns about how your own family members are being treated and need to speak with an experienced Clearwater nursing home abuse attorney, contact the Law Office of Paul B. Genet, P.A., today at 727-510-8802.

Obstructed Canal Not a “Navigable Water”

But what constitutes a “navigable water”? A recent decision by the U.S. 11^th Circuit Court of Appeals, which has jurisdiction over all admiralty cases tried in Florida, addressed that question. The case itself involves a recreational boat passenger who suffered horrific injuries on a local waterway.

The incident occurred in July 2013. The plaintiff was a passenger on a “pleasure boat” making a cruise in Miami-Dade County. The vessel was traveling along an inland canal known as the Tamiami Canal. It then moved into one of the canal’s tributaries, the Coral Park Canal. The Tamiami Canal itself flows into the Miami River, and through Biscayne Bay into the Atlantic Ocean.

According to the plaintiff, the boat moved underneath a bridge that spanned over the Coral Park Canal. There was an exposed water pipe mounted underneath and running parallel to the bridge. The plaintiff said he could not see the pipe. When the boat passed underneath the bridge, the plaintiff’s head struck the pipe, throwing him off the boat and into the canal. The plaintiff suffered significant injuries as a result of this trauma, including a skull fracture and loss of vision.

The plaintiff filed suit in federal court against Miami-Dade County, which owns the Coral Park Canal, for negligence. The county argued admiralty jurisdiction did not apply to this case. While the county conceded the plaintiff’s injuries occurred during a “maritime activity,” it said the Coral Park Canal did not constitute a “navigable water” because it was not a waterway capable of use in interstate commerce.

The courts agreed with the county. In an August 3 decision upholding a lower court’s decision to dismiss the plaintiff’s lawsuit, the 11^th Circuit said there was a man-made obstruction within the Coral Park Canal that effectively removed it from admiralty jurisdiction. This obstruction—a “water control structure”—prevents boats from “traveling outside the State of Florida.” Admiralty jurisdiction only exists where the tort occurs on a waterway that is, or can be used as, an interstate highway.

Get Help From a Florida Boat Accident Attorney

Many types of personal injury claims succeed or fail based on proper invocation of a court’s jurisdiction to hear the case. This is why if you have been injured in a boat accident or any other situation, it is important you work with an experienced Clearwater personal injury attorney who understands the law and will fight to ensure you get your day in court. Contact the Law Office of Paul B. Genet, P.A., today at 727-510-8802 if you need to speak with a lawyer right away.

Judge Holds Federal Law Does Not Preempt Parents’ Emotional Distress Claim

While most personal injury case are governed by Florida law, injuries that occur outside the navigable waters of the United States fall under admiralty law, which is entirely within the jurisdiction of the federal courts. Specifically, the Death on the High Seas Act (DOHSA) authorizes the personal representative of a person who dies due to a “wrongful act” that occurs “on the high seas beyond three nautical miles from the shore of the United States” to bring a lawsuit on behalf of the spouse or dependents of the deceased. In this context, DOHSA supersedes Florida’s own wrongful death law.

But DOHSA does not necessarily preempt all other personal injury claims. A pending DOHSA case before a judge in Miami illustrates this point. This case involves the tragic death of a 17-year-old woman from New Jersey who took a cruise out of Miami with her parents. According to the parents’ lawsuit, during the cruise they “consumed only food prepared and provided” by the ship’s crew.

Five days into the cruise, the daughter “reported to the shipboard medical facility” on the fifth day, presenting with symptoms of “vomiting, abdominal cramps and diarrhea.” The daughter’s condition continued to worsen, and the next morning she collapsed in front of her mother and died on the floor of her cabin. According to the parents’ subsequent lawsuit, the cause of death was eating “bacteria-ridden food prepared” by the cruise line’s employees.

The case remains pending. On March 29 a Miami judge largely denied the cruise line’s motion to dismiss the case. In addition to a wrongful death claim under DOHSA, the parents also seek damages for “negligent infliction of emotional distress.” The cruise line argued such a claim was also preempted by DOHSA. The judge disagreed. Although other federal courts have reached different conclusions on this subject, the judge in this case held the parents could pursue a separate emotional distress claim based on their witnessing of the events leading up their daughter’s death. The judge noted that under admiralty law, an injured party can pursue a separate claim if they “sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.” This is separate from DOHSA,which only applies to cases of wrongful death.

Get Help from a Florida Wrongful Death Attorney

If you have lost a loved one due to someone else’s negligence, regardless of where that death occurs, it is important you consult with an experienced Clearwater personal injury lawyer who can advise you of your legal options. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 today if you need to speak with an attorney.

Restaurant’s “Internal Policy” Not Enough to Create Liability

In general, the answer in Florida is “no.” Florida law states that anyone “who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person.” There are exceptions to this rule for someone who provides alcohol to a minor or a person “habitually addicted to the use of any or all alcoholic beverages.”

Aside from these limited exceptions, the law makes it difficult to sue a bar for over-serving a patron who subsequently drives drunk and injures or kills someone. For example, a Florida appeals court recently rejected just such a lawsuit. In this case, a woman had gone to a restaurant and consumed several alcoholic beverages. At some point, the restaurant staff stopped serving the woman alcohol and gave her water instead. But the staff apparently made no effort to prevent the woman from leaving the restaurant in her own car.

Later that evening, the woman drove her car into an intersection and hit another vehicle, injuring at least three people. These victims sued the restaurant, arguing it had a legal duty to prevent the woman from leaving its establishment drunk and driving her car.

As noted above, Florida law generally holds bars and restaurants harmless for the drunk driving its patrons. The plaintiffs here tried to get around this rule by arguing the restaurant had “undertook a voluntary duty to prevent the Driver from driving while intoxicated.” More specifically, the plaintiffs said the restaurant had an “internal policy” requiring employees to take a drunk patron’s keys and call them a cab. By failing to follow this internal policy, the plaintiffs said, the restaurant committed negligence.

The courts disagreed. The Florida Fourth District Court of Appeal, upholding a lower court’s decision, said an internal policy does not “create a duty to third parties.” Furthermore, the court said there was no evidence the restaurant had “control over the intoxicated party.” There was, for instance, no evidence the staff knew the women had “started her car while under the influence” of alcohol. Accordingly, the Court of Appeal said it was proper to dismiss the plaintiff’s lawsuit.

Need Legal Help Following a Car Accident?

While bars may not be liable for the acts of its patrons, a drunk driver can certainly be held responsible in court for any injuries caused to innocent persons. If you have been injured in a drunk driving accident and need advice from an experienced Florida personal injury lawyer, contact the Law Office of Paul B. Genet, P.A. at 727-510-8802 today.

However, medical providers often attempt to trick their patients into agreeing to “binding arbitration” that is substantially different that the system described above. Physicians may demand patients sign “financial agreements” that require submission of any malpractice claims to arbitration—even with respect to the question of liability. These private arbitration clauses can also limit a patient’s potential damages and due process rights beyond what Florida law provides.

Florida Courts Continue to Struggle With Private Arbitration Agreements

In 2013, the Florida Supreme Court struck down one such private arbitration clause as contrary to public policy. In that case, the patient was required to sign a financial agreement that said any malpractice claim would be submitted to arbitration as provided under Florida law. But in fact, the arbitration clause was much more restrictive. As the Supreme Court noted, the medical provider was not required to concede liability as a precondition of arbitration, and the patient’s potential non-economic damages were limited to half of what the law allowed.

Accordingly, the Supreme Court said that “any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.” The whole point of the Florida law is to provide “incentives” for patients to submit to arbitration while still protecting their basic rights. The types of arbitration clauses illustrated in this case make a mockery of the process.

Despite the Supreme Court’s ruling, the lower Florida courts continue to struggle with the enforceability of private arbitration clauses. In 2014, the Second District Court of Appeal in Lakeland held that such clauses were permissible so long as they did not refer to the Florida law. Put another way, the Florida arbitration scheme should be seen as just one option for pursuing arbitration. As the Second District put it, “The supreme court held that any agreement that seeks to enjoy the benefits of the arbitration provision under the statutory scheme must necessarily adopt all of its provisions.” (Italics in original)

But more recently the Fifth District Court of Appeal in Daytona Beach adopted a less literal reading of the Supreme Court’s decision. That court said any arbitration agreement that failed to follow the standards set in Florida law were unenforceable regardless of whether the parties specifically invoked said law. The Fifth District noted its decision was in direct “conflict with the decision of the Second District Court of Appeal,” suggesting the Supreme Court may have to address this issue at some point.

Speak With a Florida Personal Injury Lawyer Today

While arbitration may be beneficial in some cases, patients should always exercise caution before signing away their right to a jury trial. An experienced Clearwater medical malpractice lawyer can advise you of your rights and how to best protect them. Contact the Law Office of Paul B. Genet, P.A. at 727-510-8802 today if you would like to speak with an attorney right away.

Earlier Judgment Binding in Subsequent “Bad Faith” Lawsuit

Even with UM coverage, however, there may be cases where your insurance company plays hardball and refuses to settle a legitimate claim. If that happens, you may have a separate claim for “bad faith” against your insurer. Florida law allows such claims provided the insured person gives the insurer at least 60 days notice.

The Florida Supreme Court recently addressed one aspect of UM coverage and bad faith claims which had been a source of some confusion among lower courts and trial lawyers. Specifically, the Court rejected a procedural tactic used by some insurance companies to drag out litigation to the detriment of accident victims with legitimate claims.

The plaintiff in this case was injured in a car accident in 2007. The other driver was underinsured. The plaintiff had $50,000 in UM coverage from his own insurer. But even after the plaintiff gave the required 60-day notice, his insurer refused to settle for the full $50,000, instead offering just $5,000. The plaintiff noted that amount would not have even covered his past medical bills.

In 2009, the plaintiff named the insurer as a defendant in a lawsuit against the uninsured driver. The purpose of this lawsuit was to establish the full extent of the uninsured driver’s liability. The plaintiff also gave the insurer another opportunity to settle for the $50,000 policy limit, but once again he received no response.

It was not until early 2011—four years after the accident and a month before trial—that the insurer finally offered to pay the $50,000. The plaintiff said no, but the insurer’s tactic successfully delayed the trial for another six months. The plaintiff rejected a second $50,000 settlement offer, in part because a jury verdict could establish the insurer’s “potential liability under a future bad faith claim.”

The jury ultimately ruled the uninsured driver was 100 percent liable for the accident and calculated the full value of the plaintiff’s damages at $1 million. The judge ordered the insurer to immediately pay the $50,000 policy limit. The judge also “reserved jurisdiction” to decide any future bad faith claim against the insurer, which could leave the company on the hook for the rest of the $1 million.

The insurer appealed, arguing the trial judge should have allowed it to pay the $50,000 limit before trial, thereby “mooting” the plaintiff’s right to a jury determination of the total damages. In effect, the insurer said the plaintiff should have made its bad faith claim at the same time as his uninsured motorist claim, and having chosen not to do so, he should now be forced to re-litigate the entire case if he wants to pursue the bad faith issue.

The Florida Supreme Court decided this made no sense. In a 5-2 decision, the Court said the insurer’s delay tactics in this case should not be rewarded. The insurer’s “confessing judgment on the eve of trial” was designed to avoid a jury calculation of the plaintiff’s total damages—a figure that is “binding” in any subsequent bad faith action the plaintiff brings against the insurer. Forcing the plaintiff to re-litigate this issue would be “unduly and unnecessarily burdensome to him,” the Court said.

Get Legal Help Following a Car Accident

As this case illustrates, car accident litigation is often a lengthy, complex process that can take years to resolve. That is why it is important you work with an experienced Clearwater personal injury lawyer who understands the legal system and can effectively represent your interests. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 if you need to speak with someone about your case today.

Unfortunately, simply carrying no-fault insurance is not a guarantee the insurer will pay benefits. In 2012, the Florida legislature, in an effort to address allegations of people abusing the no-fault system, amended the law to limit an insurer’s liability in certain cases. Specifically, the amended law said the $10,000 limit only applied if a physician or other medical provider “determined that the injured person had an emergency medical condition.” Conversely, if the medical provider determined an accident victim “did not have an emergency medical condition,” the insurer could limit no-fault benefits to just $2,500.

Court Limits Car Accident Victims’ Insurance Benefits Due to Confusing Law

But what about cases where a medical provider made no determination of an emergency condition one way or the other? A federal appeals court recently addressed a pair of Florida cases raising that exact question. Although most accident and insurance cases fall under state law, many insurance companies are based outside of Florida, which means federal courts may hear these disputes while still applying the substantive law of Florida.

Here, there were two cases involving completely different car accidents in Florida. In both cases, the victims sought no-fault benefits up to their respective policy’s $10,000 limit. Both insurance companies denied the claims because the victims never received a medical diagnosis, one way or the other, as to whether their injuries constituted an “emergency medical condition.”

In both cases, different judges concluded that neither victim could recover more than $2,500 in benefits under the terms of the amended Florida law. In the second case, the insurance company argued it should not be liable at all. Both victims appealed to the U.S. 11^th Circuit Court of Appeals, which consolidated the two cases at the parties’ request.

On December 30, 2015, the 11^th Circuit affirmed the two lower court decisions limiting the victims’ recovery to $2,500. The court acknowledged that the 2012 amendments were “in inescapable conflict,” as the language did not specifically address a situation, as presented in these two cases, where a medical provider simply failed to make any determination as to whether or not the victim’s injuries constituted an “emergency medical condition.” That said, the court looked to the “legislative history” of the amendments and, based on that, concluded the Florida legislature “sought to reduce fraudulent claims by making the full $10,000 amount of benefits available only to those insureds who suffered severe injuries, a restriction defined into the term ’emergency medical condition.’” Therefore, allowing the plaintiffs in these cases to “escape that restriction on the higher limit would defeat the legislative intent and policy behind the amendments, which we are bound to honor.”

Need Help from an Auto Accident Attorney?

Poorly drafted legislation often leads to bad law, which in turn can hurt innocent victims. The above decision illustrates the complexity of Florida law as it relates to accidents and insurance. If you have suffered serious injuries due to a car accident it is therefore essential you work with an experienced Clearwater personal injury lawyer. Contact the Law Office of Paul B. Genet, P.A., if you would like to speak with an attorney today.

But not every contractual relationship gives rise to this duty of care. And not every irresponsible action gives rise to a wrongful death claim. A recent Florida appeals court decision illustrates this principle.

Florida Court Says Bank Not Responsible for Customer’s Suicide

This case involves a tragic suicide. The victim suffered from a number of “mental and physical impairments,” which, among other things, made him unable to “process complex information.” The victim was especially sensitive to “negative financial information.”

Shortly before his death, the victim and his wife attempted to secure a loan from a local bank. The victim’s family asked the bank not to directly contact him regarding the loan, except for routine matters like requesting documents. A bank manager agreed to these terms, but an employee subsequently notified the victim by letter his loan had been denied. After the family complained, the manager reiterated to his employee not to contact the victim.

However, the employee continued to disregard instructions and again informed the victim, this time in person. After leaving the bank, the victim committed suicide. His wife, acting as executor of her husband’s estate and as next-of-kin, filed a wrongful death lawsuit against the bank.

A trial court dismissed the case, and on appeal the Florida Fourth District Court of Appeal affirmed. The appeals court noted under Florida law, “Generally no liability exists for another’s suicide in the absence of a specific duty of care.” The primary exception to this rule is when a psychological institution assumes responsibility for a patient. There may also be a cause of action under Florida law against a psychiatrist when a patient under his or her care commits suicide.

Obviously, these exceptions did not apply to this case. And as the Court of Appeal noted, the bank “did not assume a specific duty of care to prevent the decedent from committing suicide.” Nor could the bank assume such a duty because the deceased was never under its “custody or control.” So even if the bank was irresponsible in ignoring the family’s wishes not to communicate with the victim, it cannot be held legally responsible for his suicide.

Need Advice on a Wrongful Death Claim?

It is always terrible when a family loses a loved one. It is only natural to want to hold someone responsible. If you have reason to believe another person or persons’ negligence led to your family member’s death, you should consult with an experienced Clearwater wrongful death attorney as soon as possible. While an attorney cannot make any guarantees, he can provide you with impartial advice on the best way to proceed with your case. Contact the Law Office of Paul B. Genet, P.A., today if you would like to speak with an attorney today.