South Florida Injury Law Blog

There are a number of hoops, so to speak, that a person seeking to sue for medical malpractice in Florida must jump through before filing suit. The Third District Court of Appeal explains one of them - pre-suit notice - in King v. Baptist Hospital of Miami.

Plaintiff Melissa King sent formal notices to Dr. William Thompson and his employer, Pediatric Group, PLLC, informing them that she intended to file a malpractice suit stemming from surgery and other treatment provided by Dr. Thompson to King's child at Baptist Hospital in Miami.

King then filed suit against a number of parties, including Thompson, THE University of Miami and Baptist Hospital, alleging that it was vicariously liable for Dr. Thompson's negligence. The trial court granted the hospital's motion to dismiss the claims against it, finding that King did not properly notify the hospital of her intent to file suit.

Florida law requires a plaintiff to notify each prospective defendant of his or her intent to sue prior to filing a complaint for medical negligence." Furthermore, civil procedure rule 1.650(b)(1) provides that by sending the pre-suit notice to a prospective defendant via certified mail, a plaintiff effectively gives notice to both the prospective defendant and any other prospective defendant with a legal relationship to the person or entity to whom the notice was sent.

The trial court found that there was no legal relationship between the hospital and either Dr. Thompson or Pediatric Group, and therefore their notice of the suit could not be imputed to the hospital.

Continue reading "Pre-Suit Notice Requirement in Florida Medical Malpractice Cases - King v. Baptist Hospital of Miami" »

Just about everyone is asked to signed a waiver form from time to time. But just because you sign it, doesn't mean the form is enforceable. In Claire's Boutiques v. Locastro, Florida's Fourth District Court of Appeal reversed a lower court's ruling that a parent who signed a waiver form related to her daughter's ear piercing was liable for the piercing company's costs and fees in a law suit filed after the daughter sustained an infection.

Alexis Locastro went with her mother, Amy, to a Claire's Boutique in Florida to get an ear cartilage piercing in August 2006. Following the piercing, Alexis developed an infection in her ear which ultimately required her to be hospitalized and resulted in permanent disfiguration of her ear.

Amy Locastro filed a personal injury lawsuit against Claire's on behalf of her daughter, alleging that the company's negligence caused the infection. At trial, although it was established that Claire's requires employees to undergo a piercing and sterilization training, no evidence was produced showing that the employee who performed Alexis' piercing was trained. It was also revealed at trial that Amy Locastro signed a waiver form prior to the piercing. In part, the form states

I hold only myself liable and hereby release and waive any and all claims that I or the minor may make as a result of this ear piercing. I further agree that I shall indemnify and hold Claire's harmless with respect to any and all claims that I or my minor child may make as a result of this ear piercing...

The jury returned a verdict in Locastro's favor, finding Claire's 75% negligent and awarding Alexis $69,740 for medical expenses and pain and suffering. In a separate action, Claire's sued Amy Locastro, asserting that she was required to indemnify Claire's for all costs related to the action as a result of signing the waiver form. A trial court agreed, entering a judgment against Amy Locastro for $200,274, which included defense costs and attorney's fees incurred by Claire's in defending the lawsuit.

On appeal, the Fourth District reversed the decision, finding that the waiver form was void as against public policy. "When the agreement induces a parent to act contrary to the child's welfare, the state as parens patriae must step in and void such an agreement," the court held. Citing the Florida Supreme Court's 1982 decision in Joseph v. Quest, the Court stated that public policy dictates that a parent should not be generally liable for contribution for injuries sustained by their children.

Continue reading "Court Rules Declines to Enforce Waiver Form in Ear Piercing Injury Case - Claire's Boutiques v. Locastro" »

In Kusherman v. Continental Florida Materials, Inc., the Fourth District Court of Appeal takes on the issue of fault apportionment in Florida personal injury cases.

Harvey Kusherman was injured in an accident on a construction site, where he was directing traffic as a flag man. A driver for Defendant Continental Florida Materials, Inc. - a subcontractor on the construction project - was delivering cement to the site via a truck. The driver was waved on by the construction site foreman while backing the truck out of the site. Plaintiff had his back turned to the truck at the time and did not hear it approaching. He turned around to find the truck approaching him quickly from three or four feet away. The truck knocked Kusherman to the ground and ran over his legs.

He filed a personal injury lawsuit against both Continental Florida Materials and the driver, alleging that the driver's negligence caused the accident. The trial court granted Plaintiff's motion in limine, precluding Defendants from requesting that the jury apportion the share of fault for the accident (that is, the percentage of each party's liability), finding that the company was responsible for the driver's negligence, if proved. The jury entered a $6,590,891 verdict in Kusherman's favor.

On appeal, the court reversed the decision, ruling that the Defendants were entitled to an apportionment of fault regardless of who is ultimately liable for damages. Under Section 768.81, Florida Statutes (2007), " the court shall enter judgment against each party liable on the basis of such party's percentage of fault," in a negligence case.

Furthermore, the Florida Supreme Court ruled in Fabre v. Marin that

Clearly, the only means of determining a party's percentage of fault is to compare that party's percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.

This case law, according to the court, required that the jury apportion fault in the present case.

Continue reading "In Florida Construction Accident Cases, the Jury Should Consider the Fault of Everyone Involved - Kusherman v. Continental Florida Materials, Inc. " »

In Whyte v. United States Postal Service, the federal court for the Southern District of Florida explains the basic elements of proof that a plaintiff must establish in order to win a Florida negligence lawsuit.

Plaintiff Doreen Whyte was injured while walking with her husband in their neighborhood in Sunrise. As the Whytes were crossing a street close to a neighbor's house, Ms. Whyte stepped on a white plastic band - which was lying on the sidewalk - and fell. She fractured both wrists; the injuries required surgery and physical therapy, incurring more than $60,000 in medical bills.

The Whytes sued the U.S. Postal Service (USPS), alleging that a postal service employee dropped the band on the street, causing the fall. Their negligence claim was brought pursuant to the Federal Tort Claims Act (FTCA), under which the federal government can be held liable for personal injury. The FTCA operates based on the state law in which the injury occurred.

Under Florida law, the court explained, a plaintiff suing for negligence must establish four elements:

(1) a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant's breach of that duty; (3) the plaintiff's injury being actually and proximately caused by the breach; and (4) the plaintiff suffering actual harm from the injury.

Assuming that USPS owed a duty to Plaintiffs not to discard the plastic bands on the street, the Whytes nevertheless failed to show that Ms. Whyte's injury was caused by the breach of this duty. Specifically, the Whytes did not establish that a USPS employee discarded the plastic band on which she tripped. "Whyte has presented no specific evidence showing that a USPS carrier was the source of the band that tripped her," the court ruled.

Continue reading "Proving Negligence in A Florida Personal Injury Lawsuit - Whyte v. United States Postal Service" »