February 2012 Archives

Court: Insanity is No Defense to Negligence, but "Sudden and Unforeseeable Loss of Consciousness" Is - Felker v. Zampatti

February 29, 2012,

Negligence is the most common theory of recovery for people injured in any type of accident. The law allows a person sued for negligence to defend himself on a number of grounds, including that the person's conduct was not negligent. In Felker v. Zampatti, the Middle District of Florida considers two lesser raised negligence defenses: insanity and sudden and unforeseeable loss of consciousness.

651915_crazy_daisy.jpgPlaintiff Christopher Felker was injured when the bicycle he was riding on A1A in North Florida was struck by a car driven by Defendant Andrea Zampatti. Felker and his wife Linda filed the present suit raising a number of claims, including negligence. Although both Felker and Zampatti indicated that they don't remember what happened at the time of the accident, an eyewitness testified at deposition that he saw Zampatti's vehicle swerve and hit Felker's bike.

In order for a plaintiff to successfully assert that a defendant was negligent, he or she must show that: 1) the defendant owed the plaintiff a "duty of care"; 2) the defendant breached the duty of care; 3) the plaintiff was injured; and 4) the breach caused the plaintiff's injury.

Before trial, the Felkers filed a motion for summary judgment on the negligence claims, asserting that the undisputed facts show that Zampatti breached her duty of care owed to Mr. Felker and that the breach resulted in his injury. In response, Zampatti argued that she cannot be held liable for negligence because she was insane at the time of the accident.

"Under Florida law, the general rule is that insane persons are responsible for their own negligence, despite their mental incapacity," the Court ruled, citing the Third District Court of Appeals' 1991 decision in Mujica v. Turner. As a result, the Court ruled that Zampatti may not offer evidence of her mental incapacity in defense of the Felkers' negligence claims.

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Workers Compensation Immunity in Florida Personal Injury Lawsuits - Mena v. J.I.L. Construction Group, Inc.

February 26, 2012,

In Florida, a person who is injured on the job can often seek compensation for his or her injuries under the employer's worker's compensation plan. But can the employee also sue the employer for negligence? The district court for the Middle District of Florida answers that question in Mena v. J.I.L. Construction Group, Inc.

729161_ouch.jpgPlaintiff Victor Mena sued Defendants J.I.L. Construction Group Corporation (J.I.L.) and Slorp Construction Company, Inc. (Slorp) for injuries sustained when he fell from a second-floor roof truss of a house that he was building in a Davie residential development. A general contractor subcontracted the shell construction of homes in the development to Slorp, which in turn subcontracted part of its work to J.I.L, which hired Mena to work on the construction. Both companies denied his claims for worker's compensation benefits, asserting that they did not have an employer/employee relationship with Mena. He then filed the present action alleging negligence by both J.I.L. and Slorp.

In addition to defending the action based on assumption of risk and comparative negligence, the companies further argued that they were immune from suit because Plaintiff's injuries were compensable exclusively under Florida's Worker's Compensation Act. Plaintiff, on the other hand, argued that the companies were estopped from raising this defense because they previously denied his worker's compensation claims. The trial court sided with the subcontractors, granting Defendants' motions for summary judgment.

On appeal, the Middle District affirmed the summary judgment ruling in favor of Slorp, but reversed the ruling in favor of J.I.L. Under Florida law, the Court noted, an employee cannot sue an employer for injuries encompassed in the state's Worker's Compensation Act. Citing Florida's Third District Court of Appeals' ruling in Coastal Masonry v. Gutierrez, however, the Court also stated

where an employer denies a claim for worker's compensation benefits on the basis that the injury did not occur in the course and scope of employment, or that there was no employment relationship, the employer may be estopped from asserting in a later tort action that the worker's exclusive remedy was worker's compensation...
Furthermore, a court should not grant summary judgment where the employer's notice of denial of a worker's comp claim could give rise to more than one interpretation as to whether the denial is inconsistent with a worker's compensation immunity defense, according to the Court.

In this case, the Court ruled that it could not determine whether J.I.L.'s denial of Plaintiff's worker's comp claim was inconsistent with its immunity defense. Specifically, it found that the meaning of J.I.L.'s indication that no employer/employee relationship existed between it and Plaintiff was unclear "at the very least." As a result, it reversed the summary judgment ruling. The Court found no such inconsistency in regard to Slorp, however. Rather, Slorp denied Plaintiff's worker's comp claim on the basis that he was employed by J.I.L. and therefore covered under J.I.L.'s worker's comp plan. In its immunity defense, the company similarly argued that Plaintiff was acting in the course and scope of his employment when he was injured. Thus, Slorp was not estopped from claiming worker's compensation immunity.

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Florida Court: Car Accident Plaintiff Must be Given Full Opportunity to Cross-Examine Defendant's Medical Expert - Poland v. Zaccheo

February 20, 2012,

In order to recover damages in a personal injury lawsuit, a plaintiff must not only prove that he or she is injured, but that the injury resulted from the defendant's conduct. Often, this comes down to a battle of experts, with each party presenting witnesses to support the claims or defenses. In Poland v. Zaccheo, Florida's Fourth District Court of Appeals explains that the parties must be given a full and fair opportunity to cross-examine these witnesses before a case goes to a jury for a decision.

204563_statues_of_rome_5.jpg Appellant Audra Poland was injured in a car accident in 2006 when her car was rear ended by Appellee Susan Zaccheo's SUV. Poland eventually underwent surgery for a lower back injury. She filed an action against Zaccheo for negligence. At trial, Zaccheo called an orthopedic surgeon who, according to the Court, testified that the "accident had caused only a temporary cervical strain on Poland and that the majority of Poland's injuries were attributable to preexistent disc bulges and degeneration associated with her morbid obesity." The expert further stated that the accident did not cause any permanent injury.

The jury found Zaccheo 90 percent negligent and Poland 10 percent negligent for the accident - under Florida law, a person who is injured partly due to his or her own negligence can hold another liable proportionately - awarding Poland $10,000 for past medical expenses and $4,400 for past lost earnings. The jury did not award damages for future medical expenses or lost earnings, concluding that Poland did not sustain a permanent injury within a reasonable degree of medical probability.

On appeal, Poland argued that the trial court erred by limiting her lawyer's cross-examination of Zaccheo's medical expert. Specifically, the trial judge sustained an objection from Zaccheo's attorney, preventing Poland's lawyer from questioning the expert as to whether Poland's surgery was related to the accident.

The Fourth District agreed with Poland, finding that the trial judge improperly limited cross-examination concerning the proximate cause of Poland's injuries. Section 90.612(2) Florida Statutes (2008) provides that cross-examination of a witness should be allowed to the extent that it covers matters to which the witness testified on direct examination. In this case, according to the Court, the relationship between the accident and Poland's surgery was sufficiently related to the matters to which Zaccheo's expert testified on direct examination - namely, Poland's injuries and their likely cause - that the trial judge should have allowed cross-examination on the issue. "At a minimum...the lower court should have allowed Poland's attorney to fully explore the witness's opinion regarding the causation of Poland's injuries in order to effectively refute the notion that Poland's damages were not proximately caused by the accident," the Court ruled. Accordingly, the Court reversed the jury's decision and remanded the case for a new trial.

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Florida Considers Medical Malpractice Revamp, Raising Privacy Concerns

February 14, 2012,

1342025_medical_equipment.jpgSunshine State lawmakers are set to consider a proposed law intended to limit Florida medical malpractice lawsuits by raising the standard of proof in certain cases and allowing defendants to have unfettered access to a plaintiff's treating doctors.

The Associated Press' Gary Fineout reports that "[t]his effort is being criticized as an attack on the privacy rights of patients and comes at a time when fewer medical malpractice claims are being filed, according to state regulators."

Sponsored by Rep. Matt Gaetz (R-Fort Walton Beach), House Bill 385 provides that a doctor is not liable for malpractice for failing to order or perform a diagnostic exam, unless the doctor also failed to act "in good faith," as proved by the plaintiff based on "clear and convincing evidence." It also allow a potential medical malpractice defendant - a person seeking to sue for medical malpractice must notify the defendant before filing suit - to interview the plaintiff's treating doctors without the plaintiff or his or her attorney present.

Undeterred by the difficult standard of proof that the proposed law would enact for certain medical malpractice plaintiffs, Gaetz told the AP flatly that sometimes there are simply "bad outcomes" in medicine. He also overlooked the significant privacy implications of allowing a doctor to talk to a third person about a patient's condition and treatment without the patient or a representative present.

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." ยง 456.057(7)(a)(3).

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