Florida Injury Attorney Blawg

January 14, 2023

Jeffrey P. Gale, P.A. // Recovering for Mental and Nervous Injuries in Florida

Florida’s liability law and workers’ compensation systems are cautious about awarding benefits for mental and nervous injuries. The underlying basis for the caution is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims. R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995).

What has come to be known as the “Impact Rule” requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'” See Southern Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005).

The rule is applied in common law personal injury cases and in workers’ compensation cases.

Limited exceptions to the Impact Rule apply in both fields. The common law exceptions have been created by the Florida Supreme Court. See, e.g., Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (recognizing the tort of intentional infliction of emotional distress absent impact); Champion v. Gray, 478 So.2d 17 (Fla.1985) (allowing recovery where plaintiff is in the “sensory perception” of physical injuries sustained by a close family member); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (finding rule inapplicable to actions for wrongful birth); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (impact rule does not preclude recovery of non-economic damages for parents of stillborn child); Gracey v. Eaker (impact rule inapplicable for breach of statutory duty of confidentiality to patient); Rowell v. Holt, 850 So.2d 474 (Fla.2003) (impact rule does not preclude recovery for psychological injury due to attorney’s negligence).

In short, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Id. at 478.

Compare these close-call cases: R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995) (impact rule applies to negligent HIV diagnosis without physical damage), Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 2005) (impact rule applies to outing student’s homosexuality).

December 29, 2022

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

by Jeffrey P. Gale, P.A.

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or

The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or

The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

December 23, 2022

Jeffrey P. Gale, P.A. // Don’t Stand for Discovery Abuse in Civil Cases

by Jeffrey P. Gale, P.A.

Parties to civil lawsuits in Florida have the right to learn things about an opponent’s case through a process called discovery. The discovery procedures are set forth in the Florida Rules of Civil Procedure.

Rule 1.280 sets forth the general methods and scope of discovery. Concerning scope, subsection (b)(1) provides as follows:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Multiple vehicles are available for obtaining discovery. Depositions, interrogatories, which are written questions, and requests for the production of documents, are the most common methods. Rule 1.350 addresses the request for documents. Depending on the stage of the proceeding, a response is due within 30 or 45 days of when the discovery is propounded.

The party must either produce the documents or voice an objection within the prescribed time period. Importantly, a party’s failure to respond or object to discovery within the time deadline results in a waiver of any objections that party may have to the discovery sought. Am. Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981).

December 19, 2022

Jeffrey P. Gale, P.A. // Who Pays Attorney’s Fees and Costs Assessed Against Defendant Under Proposal for Settlement?

by Jeffrey P. Gale, P.A.

In an effort to extract attorney’s fees and costs from an opponent, any party to a lawsuit may utilize Florida Statute 768.79. In cases involving substantial amounts of litigation, the award under the statute can be sizable, even in the hundreds of thousands of dollars. For this reason, the statute is also a powerful mechanism for effectuating settlements.

If the award is against an insured defendant, who pays, the defendant or the insurance company?

Florida’s Insurance Code requires policies sold in Florida to provide various types of coverage. For example, motor vehicle policies must include personal injury protection (PIP). However, the Code does not require liability insurance policies to maintain coverage for 768.79 awards.

December 7, 2022

Jeffrey P. Gale, P.A. // Ignorance of a Document’s Content is no Defense

by Jeffrey P. Gale, P.A.

“Ignorance of the law is no defense” is a popular expression. It means that a person will not be excused from punishment for not knowing that particular conduct was against the law.

A similar rule holds true when it comes to written documents: Ignorance of a document’s content does not discharge the responsibility of a party to the document.

We are in suit against a homeowner for serious personal injuries sustained by our client from an accident that occurred on the homeowner’s property during a construction project. Among the legal theories claimed for holding the homeowner responsible is the breach of his duty created by undertaking the project as the owner-builder.

November 20, 2022

Jeffrey P. Gale, P.A. // Florida’s EMA Law Neuters the Independence of Workers’ Compensation Judges

by Jeffrey P. Gale, P.A.

The resolution of disputes in Florida workers’ compensation cases often boils down to medical opinions. On this matter, the deck is stacked against injured workers (a/k/a “claimants”).

Section 440.13(2)(a), Florida Statutes lays out the obligations of employers and their insurance carriers, commonly referred to as “E/C,” to furnish medical care to injured workers. Unless an E/C fails to furnish care timely, it controls who is authorized to provide care at every stage of the case. 440.13(2)(a),(c)&(f). In other words, E/C get to pick claimants’ medical providers.

We typically see the same handful of medical providers selected by E/C in every case. The obvious reason why is because the providers make a steady and reliable income from workers’ compensation cases and know better than to bite the hand that feeds them. Especially when a call can go either way, they are skilled at expressing opinions favorable to E/C. They’re also adept at managing care so they make money, for example, with ongoing visits and physical therapy, while depriving claimants of the opportunity to recover lost wage payments. In this regard, “No functional limitations” is a favorite conclusion. See Section 21 of DWC-25. (This form is supposed to be completed by authorized doctors after every appointment.)

Making matters worse is that judges of workers’ compensation claims (“JCC) are not allowed to consider the opinions of any medical providers other than those authorized by E/C, typically the hand-selected usual suspects, each party’s IME, and an EMA doctor. Section 440.13(5)(e) provides as follows:

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

An IME doctor is not a treater. He or she gets to examine the claimant one time and review medical records. See 440.13(1)(h)&(i) and (5). The EMA doctor is appointed by the Judge of Compensation Claims (JCC) to resolve differences of opinion among authorized and IME doctors. Section 440.13(9), Florida Statutes.

November 17, 2022

Jeffrey P. Gale, P.A. // Florida’s Vehicle Crash Rear-End Fault Presumption Not Absolute

by Jeffrey P. Gale, P.A.

In 1958, Florida joined a handful of other states in adopting the evidentiary rule that a presumption of negligence arises against the trailing vehicle in motor vehicle crashes. See McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958) (Other jurisdictions limited the rear-end aspect of the collision to creating an inference of negligence.). Shortly thereafter, the rule was approved by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959). The usefulness of the rule was explained in Jefferies v. Amery Leasing, 698 So.2d 368 (Fla. 5th DCA 1997):

A plaintiff ordinarily bears the burden of proof of all four elements of negligence—duty of care, breach of that duty, causation and damages. See Turlington v. Tampa Elec. Co., 62 Fla. 398, 56 So. 696 (1911); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. Beginning with McNulty, therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits. Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965); Brethauer v. Brassell, 347 So.2d 656, 657 (Fla. 4th DCA 1977). At the time when this rear-end collision rule was developed, Florida was still a contributory negligence state. Thus, if the presumption were not overcome, the following driver’s claim would be barred. Under contributory negligence, a negligent plaintiff could not recover against a negligent defendant. See Shayne v. Saunders, 129 Fla. 355, 362, 176 So. 495, 498 (1937). Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA), quashed on other grounds, 216 So.2d 448 (Fla.1968).

As the court explained in Birge v. Charron, 107 So.3d 350, 361 (Fla. 2012), “the rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation.”

November 17, 2022

Jeffrey P. Gale, P.A. // Exception to Incident Report Work-Product Privilege

by Jeffrey P. Gale, P.A.

Litigants seek probative evidence to prove their cases through procedural discovery methods. In personal injury cases, incident reports describing the circumstances of the accident typically contain valuable information.

Defendants usually oppose turning over incident reports to plaintiffs. The argument is that the incident report was prepared in anticipation of litigation and, therefore, is protected by the work-product privilege. See Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege.”).

November 8, 2022

Jeffrey P. Gale, P.A. // Peer Review in Florida Workers’ Compensation

by Jeffrey P. Gale, P.A.

The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

October 27, 2022

Jeffrey P. Gale, P.A. — Arbitration is Un-American

by Jeffrey P. Gale, P.A.

The 7th Amendment to the United States Constitution, ratified in 1791, codifies the importance of jury trials in civil cases to the framework in the American Way. Here is the amendment’s simple language:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Jury trials allow everyday citizens, guided by the law and the facts, to pass judgment on civil matters between contesting parties. The concept is that the collective wisdom of juries consisting of our peers, devoid of bias and preference, will render just decisions. The system, which, in my view, is the greatest system devised by any society for handling such matters, has worked remarkably well.

FLORIDA INJURY ATTORNEY BLAWG