Florida Injury Attorney Blawg

March 7, 2012

Stuart v. Hertz Corporation – Florida Supreme Court Finds Original Wrongdoer Liable for Subsequent Medical Malpractice

In Stuart v. Hertz Corporation, 351 So.2d 703 (Fla. 1977), the Florida Supreme Court decided that the Hertz Corporation, whose vehicle injured a woman in an accident, was liable for the injuries she sustained from medical negligence while receiving care for her original injuries, and that Hertz could not bring the doctor into the case to make him pay for the damage he caused.

The woman sued Hertz. Hertz, in turn, filed a third party complaint against the doctor, Stuart, seeking indemnification, i.e., that the doctor pay for the damage he caused. The woman’s motion to dismiss the third party complaint was denied, and the trial court’s order was affirmed on appeal in the Fourth District Court of Appeal. The Florida Supreme Court reversed.

The issue was framed by the Supreme Court as follows: Therefore, the issue before us is simply whether or not an active tortfeasor in an automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff’s injuries.

Although some lawyers think that the Hertz case set the standard in Florida for defendants being responsible for subsequent injuries, the rule was actually first stated in 1932, in J. Ray Arnold Corporation, etc. v. Richardson, 105 Fla. 204 (1932). That court held:

“Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918.” At 135.

March 5, 2012

Florida PIP Insurance Payments Satisfying Health Insurance Deductible

by Jeffrey P. Gale, P.A.

When motor vehicle accidents cause serious personal injuries, it is not uncommon for PIP benefits to exhaust before all necessary medical care has been received. When health insurance carrying a large deductible is available, does the amount paid by PIP count against the deductible?

The likely answer is Yes. However, the final answer depends on language in the health insurance policy.

A health insurance policy is a contract. Unless contravened by public policy – statutes and case law – its terms control the duties and responsibilities of the parties to the contract. If the language of the contract is vague and confusing, or the contract is otherwise silent on the subject, the insured should win the issue.

We are not aware of any public policy pronouncements on the subject of this blog. Accordingly, the outcome depends on policy language.

Health insurance policies contain many different sections, although the sections where the language concerning this issue are most likely to be found are the patient responsibility section and the coordination of benefits section.

The insurance carrier may argue that because PIP payments do not equal payments from the insured, the deductible has not been satisfied. This argument is a red herring. It is not a matter of the insured being out-of-pocket, only that the billed amount (or “allowed amount” – see below) meets the deductible. Our position is that the deductible calculation should be the same whether the insured paid the bills, owes the money, or the bills were paid by PIP or some other source, perhaps another health insurance carrier.
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March 4, 2012

Use Workers’ Compensation Case to Learn About Other Causes of Action (e.g., Personal Injury and Wrongful Termination)

by Jeffrey P. Gale, P.A.

Sometimes workers are hurt in the course and scope of their employment by the negligence of third parties. Third parties in this context are entities other than those entitled to workers’ compensation immunity. Employers and some subcontractors are entitled to the immunity. Those that are not must pay damages in accordance with the personal injury laws, something quite different than the benefits prescribed by workers’ compensation.

Sometimes employees are harassed or terminated by employers for claiming workers’ compensation benefits. Chapter 440 does not protect employers against being sued for this type of violation. See Florida Statute 440.205. See, also, our blog, Survey of Florida’s Workers’ Compensation Wrongful Termination Law.

Sometimes workers’ compensation insurance companies and their adjusters engage in unconscionable conduct during the claims handling process. They are not immune from suit for this type of conduct. See Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005).

When our office suspects that any one of these violations has occurred, we sometimes use the discovery procedures available in workers’ compensation cases as a vehicle to learn about the potential other causes.
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March 2, 2012

Binding Florida Hospitals for Medical Negligence of Independent Contractors

by Jeffrey P. Gale, P.A.

Most people do not know that many doctors who work in hospitals are not hospital employees, but independent contractors. This is not a distinction without meaning.

The distinction can have significant legal consequences for the victims of medical negligence seeking to be fairly compensated for harm done, especially catastrophic damage.

Generally, employers are bound by the negligence of their employees. This is the concept of respondeat superior, where a passive party is liable for the negligence of another party.

The legal principle is not applicable in relationships involving independent contractors. The general rule is that entities, including hospitals, are not liable for the negligent acts of independent contractors.

Thankfully, there are exceptions to the rule, circumstances wherein an entity can be held to account for the negligent conduct of an independent contractor. In the context of hospitals, these are the exceptions:

The medical provider is either an actual or apparent agent of the hospital. See Roessler v. Novak, 858 So.2d 1158, 1161-62 (Fla. 2d DCA 2003). Three elements must be present for apparent agency: (a) a representation by the principal; (b) reliance on that representation by a third party; and (c) a change in position on the reliance. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla. 1995). Importantly, apparent agency does not arise from the subjective understanding of the third party. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, as indicated in the Mobil Oil case, its presence is wholly dependent on the appearance created by the principal. In Roessler, the appellate court recited the following facts as creating enough of a question on the issue of apparent agency to reverse the trial court’s order dismissing the claim against the hospital:

In the present matter, evidence presented to the trial court for the purpose of the summary judgment proceeding demonstrated that Sarasota Memorial maintained a radiology department which was physically located within the hospital’s grounds. Sarasota Memorial contracted with SMH Radiology Associates, P.A., for it to be the exclusive provider of professional radiological services at the hospital. Dr. Lichtenstein was an employee of SMH Radiology on the date he interpreted Mr. Roessler’s scans. Neither Dr. Lichtenstein nor SMH Radiology had offices outside of Sarasota Memorial’s hospital grounds. The radiologists employed by SMH Radiology, including Dr. Lichtenstein, worked at Sarasota Memorial to provide all professional radiological services twenty-four hours a day, seven days a week, to Sarasota Memorial’s inpatients and outpatients.

Mr. Roessler sought the services offered by Sarasota Memorial when he went to Sarasota Memorial’s emergency department. 1163*1163 He was admitted to Sarasota Memorial as an inpatient through Sarasota Memorial’s emergency department. Once Mr. Roessler arrived at Sarasota Memorial and was admitted as an inpatient, the hospital provided him with the health care services and providers it determined to be necessary. Such services included inpatient professional radiological services, which were provided by Sarasota Memorial through its radiology department. After abdominal scans were taken in its radiology department, Sarasota Memorial assigned Dr. Lichtenstein to interpret them. Like the plaintiff in Cuker, 605 So.2d 998, Mr. Roessler did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital.

The hospital fails to exercise due care in the selection and retention of an independent contractor medical provider on the hospital staff. See Insinga v. LaBella, 543 So.2d 209, 214 (Fla. 1989). In Insigna, a patient died in the hospital from botched treatment from a phony doctor who had been granted hospital privileges. The decedent’s estate sued the hospital negligent selection and retention of the imposter. Relying on the general proposition that principals are not liable for the negligence of independent contractors, the lower court dismissed that part of the claim against the hospital. The Florida Supreme Court disagreed with the lower tribunal, finding, “as a matter of public policy, that hospitals are in a better position to protect their patients and, consequently, have an independent duty to select and retain competent independent physicians seeking staff privileges.”
Where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). With regard to hospitals, the duty may arise out of a statute, a regulation, or a contract. Id. at 187-88. The contract concept is summarized well in a jury instruction the appellate court in Irving v. Doctor’s Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) decided should have been given by the trial judge: “[O]ne who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance, or a failure to perform, by showing that he has engaged another to perform in his place, and that the fault or failure is that of another or independent contractor.” Irving was an action involving the liability of a hospital for alleged negligent diagnosis and treatment by an emergency room physician that resulted in serious injury to appellant’s minor daughter. The ER physician was an independent contractor, rather than an employee of the hospital. The DCA reasoned that since the hospital was under contract to render medical care to the child, it could not excuse the fault of the ER doctor because he might have been an independent contractor.
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February 27, 2012

Wages for Waiting Time – FLSA and Florida Statute 448.08 (Unpaid Wages)

by Jeffrey P. Gale, P.A.

We are finding that more and more employers are switching from paying wages based on set schedules to only paying for work performed. Although the practice has been in place for years, it seems to become more prevalent during tough economic times. Whether the practice is allowed under the FLSA (Fair Labor Standards Act) and Florida Statute 448.08 depends on the circumstances.

In a recent case, our client was employed to load and unload cargo planes at Miami International Airport. Because planes departed and arrived on rough schedules, he often had no work to perform for long stretches of each 8 hour shift. For the first two years, he was paid for each hour of his shift, work or no work, including overtime wages. This all changed one week without warning when his paycheck was nearly half the normal rate. He learned that the employer had changed its policy to limit wages to work performed, cutting out idle time pay. Instead of being paid for 48 hours a week, the minimum amount of time he was required by the employer to be at the airport, he was only paid for 24 to 30 hours, a substantial difference. We sued the employer for overtime wages under the Fair Labor Standards Act and unpaid wages under Florida Statute 448.08. The case ended up settling on terms favorable to our client.

Another case involves an auto mechanic who, although required by the employer to be onsite, only got paid when he worked on vehicles rather than while waiting for assignments.
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February 26, 2012

Survey of Florida’s Workers’ Compensation Wrongful Termination Law

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system, embodied in Chapter 440 of Florida’s Statutes, is mostly unfriendly towards injured workers. Some smart people predict that it is only a matter of time before the system is declared unconstitutional as no longer providing a fair alternative to the personal injury system, which is what is was created to do nearly 80 years ago and what it mostly did until 2002, until Jeb Bush and Republican legislators began eviscerating the system one large cut at a time. The workers’ compensation system today is a shadow of the one that existed a mere 10 years ago. (For a detailed breakdown of the differences, see our recent blog, Florida’s Workers’ Compensation System’s Steady Decline Into the Abyss.)

One area of Chapter 440 that has not lost its bite for injured workers is

February 20, 2012

Toxic Gases (the Silent Killers) and Florida’s Civil Justice System

by Jeffrey P. Gale, P.A.

The three most common toxic gases – hydrogen sulfide, carbon monoxide, and methane – can injure and kill, both slowly and instantaneously, at home and in the workplace. They are produced naturally. Where the potential exists, safety procedures and safety devices should be in place.

HYDROGEN SULFIDE: Known as sewer gas or stink damp for its rotten egg smell. Colorless and flammable, in high concentrations it can cause death in just a few breaths. It occurs naturally in crude petroleum, natural gas, volcanic gases, and hot springs, and also results from bacterial breakdown of organic matter.

CARBON MONOXIDE: This gas is odorless, colorless, impossible to see and taste. In low concentrations, CM causes flu-like symptoms such as headaches, dizziness, nausea and fatigue. At high concentrations, it is a killer. It is generated by gasoline powered equipment like motor vehicles, space heaters, gas stoves, and generators. Proper ventilation can reduce risk. In a 2010 Florida tragedy, five young teens were killed in a Hialeah motel room when a car was left running in an abutting covered garage. They were found dead in their room fully clothed. Tobacco smoke generates CM.
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February 17, 2012

2012 Florida Legislature Seeks to Eliminate Rights of Medical Malpractice Victims

by Jeffrey P. Gale, P.A.

As if the arbitrary and capricious damage caps already on the books were not enough, the 2012 Republican-controlled Florida Legislature is moving forward with legislation designed to keep those harmed by medical negligence from ever being compensated for their losses.

Senate Bill 1506 will allow doctors to get patients to waive their right to compensation for losses suffered from medical malpractice.

That’s right, not a single penny for past and future medical expenses, lost wages, or for pain and suffering!!!

How could this be, you ask. Simple. With a Governor Rick Scott and a super-majority of radical Republicans controlling both chambers of the Florida Legislature, anything is possible.

Eliminate zoning restrictions on pristine land. Done. Tax dollars to private religious schools. Done. Reduce spending for public schools. Done. Suppress voting rights. Done.

Ending the rights of malpractice victims. Almost done.
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February 16, 2012

Graves Amendment Does not Apply to Loaner Vehicles

by Jeffrey P. Gale, P.A.

49 U.S.C. Sec. 30106 (the “Graves Amendment”) shields those “engaged in the trade or business of renting or leasing motor vehicles [when] there is no negligence or criminal wrongdoing on the part of the owner” from vicarious liability for the rented or leased vehicle. Sec. 30106(a).

Given this language, does the Graves Amendment shield car dealerships from vicarious liability for accidents involving loaner vehicles? The one decision discussing the Graves Amendment vis-a-vis free service loaners, Zisersky v. Life Quality Motor Sales, Inc., 866 N.Y.S. 2d 501 (N.Y.. Sup. Ct. 2008), says No. Correctly, in our view, the court concluded that a loaner is neither a “lease” nor a “rental.”

The Graves Amendment has been used to shield rental agencies from vicarious liability for serious personal injuries caused by the drivers of their vehicles. We take issue with the Graves Amendment being applied under any circumstances, yet, sadly, it seems to be carrying the day in courts of most states with regard to rental agencies … at great harm to many individuals.

For example, our office is currently involved in a case where the negligent renter of an Enterprise vehicle caused it to flip over numerous times on I-75 near Gainesville, Florida. Enterprise is hiding behind the Graves Amendment to deny needed compensation to our client, an innocent passenger who was airlifted to Shands Hospital.
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February 15, 2012

Preventing Speaking Objections During Depositions – Florida Law

by Jeffrey P. Gale, P.A.

A deposition is the gathering of sworn verbal testimony under oath. Except for communications that are protected by attorney/client privilege and the 5th amendment right against self-incrimination, witnesses are required to answer deposition questions. If a lawyer feels that a question is confusing, misstates testimony, lacks foundation, or assumes facts not in evidence, it is proper for an objection to be lodged before the question is answered. In most instances, the objection should simply be, “I object to the form of the question.” This alerts the deposing lawyer that there may be a problem with the question. However, unless the lawyer invites the objecting attorney to explain or clarify the objection, nothing more should be said. Unfortunately, some lawyers abuse the right to object by not only explaining and clarifying without been asked to do so, they also suggest the response the witness should make. This obstructs the fact gathering process and is prohibited by various authorities.

It is difficult to keep disagreeable attorneys from staying in bounds during depositions. One solution is to warn the attorney and if the abuse continues, try to get the presiding judge on the telephone to issue a ruling on the spot. Sanctions can be sought after the deposition, but the cat is out of the bag by then.
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FLORIDA INJURY ATTORNEY BLAWG