South Florida Injury Law Blog

The statutory cap on punitive damages in Florida medical malpractice cases remains intact - at least for the time being - thanks to a recent ruling by the Eleventh Circuit Court of Appeals.

In Estate of Michelle Evette McCall v. United States, the Eleventh Circuit upheld Florida's cap on non-economic medical malpractice damages, ruling that the statute under which it was enacted does not violate the U.S Constitution. However, the court opted to certify the question of whether the cap violates the Florida Constitution to the state supreme court.

Michelle McCall died in February 2006, shortly after giving birth via cesarean section at the Eglin Air Force Base hospital in southwest Florida. McCall's estate, parents and husband sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80.

After a two-day bench trial, the District Court found the United States liable under the FTCA because the negligence of its employees proximately caused Ms. McCall's death. The District Court found that the plaintiffs' compensatory damages, or financial losses, amounted to $980,462.40 and punitive, or noneconomic damages, totaled $2 million. Because Florida Statute § 766.118(2) limits the recovery of noneconomic damages in a medical malpractice case to $1 million, the court capped these damages accordingly.

On appeal, the plaintiffs argued that the statutory cap violates the Equal Protection Clause of Fourteenth Amendment and constitutes a taking in violation of the Constitution's Fifth Amendment. They additionally asserted that the cap violates various provisions of the Florida Constitution: (1) the guarantee of separation of powers in Article II, § 3 and Article V, § 1; (2) the right to trial by jury under Article I, § 22; (3) the right of access to the courts under Article I, § 21; (4) the right to equal protection under Article I, § 2; and (5) the prohibition against a taking of property without just compensation under Article X, § 6.

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Personal injury lawsuits against insurance companies are often a battle of doctors. While American physicians all receive similar training, their opinions commonly differ as to the cause and extent of a particular person's injury. Many insurance companies are sued so often that they regularly call on the same doctor or doctors to serve as expert witnesses. It should come as no surprise then, that plaintiffs suing insurance companies want to know about the doctors the company plans to call at trial (does the doctor always render opinions beneficial to the insurance company?). A recent ruling makes that a little more difficult.

In USAA Casualty Insurance Company v. Callery, Florida's Second District Court of Appeals ruled that a trial court could not compel the defendant insurance company to disclose the results of the last 20 medical examinations by a physician called by the insurance company to testify in the plaintiff's suit for uninsured motorist benefits.

The plaintiff, Christopher Callery, was injured in an auto accident and sued USAA seeking uninsured motorist benefits. At trial, USAA intended to call a physician to testify as to whether Mr. Callery suffered permanent injury as a result of the accident. Mr. Callery requested that the defendant produce records of the doctor's previous 20 medical examinations. As the Second Circuit explains in its opinion

"Mr. Callery hoped to impeach the physician by showing that his reports routinely and uniformly supported insurers. USAA objected to the request; Mr. Callery moved to compel discovery. The trial court ordered production with all patient-identifying information redacted. More specifically, the trial court directed that only the physician's conclusions/impressions, the physician's signature, the date of report, and the name and address of the receiving attorney be provided."

Section 456.057(7)(a)(3), Florida Statutes (2010) requires that a health care practitioner obtain a patient's written authorization before discussing the person's medical records with a third party. The law provides an exception, however, "[i]n any civil or criminal action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records." § 456.057(7)(a)(3).

Relying on its decision in Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008), the court held that the reports sought to be compelled did not fall within the exception because they were sought only for the purpose of impeaching a non-party physician. The court distinguished the matter from that of Amente v. Newman, 653 So. 2d 1030 (Fla. 1995) - a medical malpractice case in which the state supreme court held that a defendant physician's medical records for all similar patients for a two-year period were discoverable, without notice to the patients so long as the records were redacted to protect patient identity - because the doctor whose records were sought in that case was an actual party to the litigation.

Despite the ruling, the court left open a scenario under which a physician's extraneous medical reports may be compelled without running afoul of Florida law. Quoting its own opinion in Graham, the court noted that its ruling in that case "at most 'allows a court to override [the statutory ban on medical record discussion by a physician] by providing adequate alternative means to protect other patients' privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.'" The requisite circumstances, however, remain unclear.

Continue reading "Can Florida Personal Injury Plaintiffs Examine Insurance Company Doctors' Records? USAA v. Callery" »

It's guns vs. speech in the latest constitutional battle to hit Florida, one that could effect the rights of doctors and patients across the Sunshine State.

A group of physicians filed suit in Miami's federal court earlier this month, asking the court to shoot down a new law prohibiting health practitioners from routinely asking their patients if they own guns and have them properly stored.

The statute, titled "Privacy of Firearm Owners" and signed into law by Gov. Rick Scott on June 2, prohibits healthcare professionals from asking patients about gun ownership unless the information is relevant to the patient's medical care, safety or the safety of others. The law also bars practitioners from entering the information into a patient's medical record. Doctors who violate the law face fines up to $10,000 per offense and potential loss of license, according to the physician's complaint.

The Miami Herald's Michael Peltier reports that "[t]he legislation appears to have originated after an Ocala couple complained that their doctor had told them to find another physician after they refused to disclose whether they owned guns and how they were stored...The bill (HB 155) easily passed both chambers along largely party line votes - 88-30 in the House and 27-10 in the Senate."

The debate over the law pits two Constitutional rights - the right to free speech under the First Amendment and the Second Amendment's right to bear arms - against each other, requiring the court to decide where a doctor's legitimate and thorough care of a patient ends and overreaching into private, constitutionally-protected matters begins. While courts have long upheld free speech (with certain exceptions), including the right to ask questions as axiomatic to democratic society, the Supreme Court has also made clear that the Second Amendment protects an individual's right to possess a firearm and to use that firearm for lawful purposes, such as self-defense within the person's home.

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In Florida personal injury cases, the question of whether a plaintiff's injuries are permanent is one typically left to the jury. Recently, however, the Florida Supreme Court explained that under certain circumstances a court is entitled to answer the permanency question itself, directing a verdict on the issue.

In Wald, Jr. v. Grainger, etc., the court held that the trial court properly directed a verdict for the plaintiff on the issue of permanency where the evidence of injury and causation were such that no reasonable inference could support a jury verdict for defendant and where, although the medical experts disagreed as to the medical cause of the plaintiff's injury, they agreed that petitioner sustained a permanent injury to his right thigh that was causally related to the accident.

Petitioner Howard Wald, Jr. alleged injuries to his neck, back, right arm, foot, and thigh stemming from a car accident with Sam Gus Felos. Since the defendant admitted fault, the only issues for the jury to consider were causation, the permanency of Wald's injuries and damages. Two doctors testified at trial: Wald's treating physician stated that Wald's injuries, including his right thigh injuries, were permanent and connected with the accident; the defendant's expert physician testified that Wald had permanent right thigh numbness and gave Wald "the benefit of the doubt" that the condition was related to the accident.

Over the defendant's objection, the trial court granted Wald's motion for directed verdict on permanency, but only as to the right thigh injury. The jury entered judgment for Wald and awarded him over $1 million in damages for his injuries.

On appeal, the First District Court of Appeals reversed the final judgment, holding that because the permanency issue was a jury question, the trial court erred in directing the verdict. According to the Florida Supreme Court "[t]he First District explained that a jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony regarding permanency, including uncontradicted testimony."

Continue reading "Permanency Evidence and Directed Verdicts in Florida Personal Injury Cases - Wald, Jr. v. Grainger, etc." »

Recording artist Sean Kingston was injured in a Memorial Day weekend jet ski accident in Miami in which the vehicle he and a passenger were riding struck a major bridge connecting Palm Island with the MacArthur Causeway.

"About 6 p.m., the hip-hop and reggae singer slammed into the Palm Island Bridge, which connects the MacArthur Causeway to Palm and Hibiscus islands," The Miami Herald's Kathleen McGrory reports. "Both he and the passenger were thrown into the water."

Kingston's life vest came off during the crash, causing him to sink below the surface of the water after he was thrown from the vehicle. He was rescued by nearby boaters. Kingston suffered a broken jaw, fractured wrist and water in his lungs, but is expected to make a full recovery.

Cassandra Sanchez, Kingston's passenger on the vehicle, tells TMZ.com that she and Kingston were racing another jet ski. "Both jet skis pulled out of the dock at the same time and we were going so fast we just blasted past them. When we turned a corner and crashed ... they were so far behind us they didn't even see us crash."

Personal Watercrafts (PWCs) - those, like jet skis, that are designed to be operated by a person or persons sitting, standing or kneeling on the craft rather than within the confines of a hull - were the second most common type of vessel involved in reported accidents in 2009, according to the U.S. Coast Guard. PWC accidents resulted in 848 injuries and 42 deaths nationwide. Roughly one-third of those deaths were caused by drowning.

The National Association of Rescue Divers warns that jet ski operators should "keep a lookout for other boats and water craft, especially sail boats," and "[s]tay at least 100 feet away."

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