Personal Injury

Independent Medical Examinations in Florida Personal Injury

Published on: September 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a Florida personal injury lawsuit, both sides conduct investigations in a phase called “pre-trial discovery.” Discovery simplifies the issues, eliminates surprise and encourages fair settlements. Among the tools for discovery are interrogatories, requests for admission, depositions, subpoenas of medical records and independent medical examinations.

A defendant is usually entitled to have a doctor of his or her choice examine a plaintiff where a plaintiff is claiming a physical or emotional condition. That doctor will have access to medical records in addition to the medical examination in order to render an expert opinion at deposition and at trial. Usually where the parties disagree about a trial court’s discovery ruling, the issue can be taken up on appeal. However, sometimes a plaintiff or defendant may petition the appellate court to review the trial court’s decision before the case is over.

In a recent case, the defendant vehicle hit a minor in Florida, fracturing his ankle. The minor had a surgery. His mother subsequently filed a suit against the man for negligence. The defendant requested a pediatric orthopedic examination. A first independent medical examination (IME) was conducted. The minor had a second ankle surgery.

When Must a Plaintiff’s Attorney Recuse Him or Herself in a Florida Trip and Fall Case?

Published on: September 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Trip and fall cases can be difficult to prove in Florida. A critical aspect of preparing a case is interviewing witnesses, including the property owner or manager. Usually an investigator does this investigation alone. Sometimes, an attorney accompanies the investigator, but this can raise certain risks, such as the risk that the attorney will become a witness. This is particularly likely in multi-party personal injury cases.

In a recent trip and fall case, a Florida appellate court considered whether an attorney had to be disqualified after becoming a witness. Subsequent to the initial appellate ruling, the appellate court granted a motion for rehearing and substituted a different opinion.

In the case, a plaintiff sued a store for personal injuries after tripping and falling near the store entrance in a shopping center. A guardrail had been taken away from a handicap access ramp, leaving a hole that the plaintiff tripped on. Her tibia and shoulder were broken, requiring surgery.

What is Considered a Fraud Upon the Court in Florida Personal Injury Lawsuits?

Published on: August 28, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Claiming your opponent has committed a fraud on the court is a serious accusation in Florida lawsuits. In a recent car accident case, the plaintiff sued the defendants alleging permanent injuries that included aggravation of a previously existing condition. During his deposition, he testified that he had previously been injured when two glass plates landed on his face at work. He testified that the resulting injuries did not affect his back. He also claimed that he hadn’t complained about back pain to a physician who had treated him for that accident.

In responses to written interrogatories, he claimed there that as a result of a 2004 car accident, he had hurt various body parts including his lower back. However, when asked in written interrogatories whether any part of his body that he claimed was injured in the latest car accident had been injured before, he only listed his neck and head injuries from the work accident. He claimed the same treating physician had treated him for both car accidents.

The defense subpoenaed the physician’s records. The records showed that the plaintiff may have complained about back injury before the second car accident. The doctor had noted that the plaintiff’s lumbosacral spine showed a reduced range of motion and made other notations on just a couple of occasions indicating that the plaintiff had complaints about his back. The final report made no mention of spine pain.

Can a Florida Hospital Be Liable for Negligent Acts by Its Employees?

Published on: August 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

“Respondeat superior” is a theory that may be asserted in personal injury cases in many jurisdictions, including Florida. It makes employers liable when their employees commit wrongful acts within the course and scope of their employment. A recent case illustrates how this type of theory can be pursued in a medical malpractice context. Respondeat superior cases differ from direct liability cases that are brought against employees of hospitals like doctors, nursing staff, or administrative staff.

In the case, parents took their young daughter to an ER twice in one day when she had an acute asthma attack. On both visits, the staff wouldn’t treat her. They would only treat her when the ambulance brought her a third time. The parents filed a lawsuit against the hospital, claiming it was liable for its staff’s failure to treat their daughter.

The hospital asserted that the claim was a medical malpractice claim. In Florida, medical malpractice claims are subject to a presuit requirement, which was not met in this case. The hospital’s argument was rejected.

Is There A Duty to Help Someone In Danger in Florida?

Published on: August 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Duty is a question of law in Florida. An affirmative duty to help a person in need cannot be imposed on just anyone. An appellate case illustrates just how strict the prohibition against imposing such an affirmative duty is.

In the case, the plaintiff was drinking with a man and his friend at a bar. The men were drunk. The man got belligerent with people at the bar. The plaintiff told him he was acting like an a******. The man and his friend followed him, asking why the plaintiff called him that.

The plaintiff ignored the pair, but had to go between the man’s truck and another car. As he went between them, the man hurried to the other side, trapping the plaintiff. The man’s friend followed him into the space between the cars.

What is Florida’s “Obvious Danger” Doctrine?

Published on: August 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida premise liability cases, the obvious danger doctrine allows a landowner to avoid liability where the condition that caused the injury was known or obvious to the person who was injured.

In a recent case, a woman sued a market after tripping on a mat outside the public entrance to the store. The woman and her husband went to the market to buy groceries. The couple couldn’t remember if the mat was present at the entrance when they entered the store. However, the woman did remember that she’d seen the mat in front of the door on prior trips to the store.

After they were done shopping the man took the shopping cart of purchases to the car while the woman stayed inside to buy some additional items. The man noticed that an employee was laying the mat at the door as he left. The mat was not perfectly flat.

When the woman left the store, she tripped on the mat and fell, injuring her neck, elbows and knees. Later the husband would testify that a representative of the store claimed they were at fault at the time. The woman filed a premises liability complaint against the store, alleging that it failed to warn of a dangerous condition.

Can a Defendant Use Your Financial Condition as Evidence in a Florida Personal Injury Case?

Published on: August 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently addressed this issue in the context of a personal injury plaintiff who claimed her financial situation did not permit her to seek or receive consistent treatment for claimed injuries. The case arose out of a car crash in which the defendant claimed his car was bumped by another vehicle where it rear-ended the plaintiff’s car during stop and go traffic. The plaintiff claimed to be okay after the accident and drove home by herself.

Later she claimed she had a strain or sprain injury in her neck and back and suffered herniated discs due to the accident. She saw a chiropractor who recommended physical therapy for her symptoms: neck pain, arm pain, headaches, numbness, and impaired vision. She quit therapy because it made her feel worse.

When Can a Plaintiff Ask for A New Trial in Florida?

Published on: July 26, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under certain circumstances, after a trial, a personal injury plaintiff may make a motion for a new trial, sometimes focusing on a new trial for a specific issue in the original trial. One reason for a new trial is a trial judge’s finding that the verdict rendered by the jury is contrary to the evidence put forward at trial. This means that the judge believes there is no way a reasonable jury could have concluded as it did.

In a recent case, a plaintiff was awarded past and future medical damages, as well as past and future pain and suffering by a jury. The defendants did not contest liability for the car accident. They didn’t contest that the plaintiff’s first surgery arose because of the injuries from the car accident. At trial, the issues were whether the costs of the first surgery were reasonable and whether another surgery years later was also the result of the car accident. The parties disagreed as to why the later surgery arose. They presented conflicting evidence at trial on these issues and had different expectations about what factual findings the jury would make.

Rear-Ending Vehicle Accidents in Florida

Published on: July 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, there is a rebuttable presumption that the rear driver caused a rear-ending car accident–that the rear driver’s negligence was the sole proximate cause of a collision. When this rule was put in place, Florida was a contributory negligence state. That meant that when a plaintiff was at all at fault, the defendant could use the plaintiff’s negligence to show he or she should not recover any damages, even when the plaintiff was only slightly at fault.

Last year, the Florida Supreme court decided a rear-ending car accident case that clarified what the rear end presumption means today when contributory negligence is no longer a bar against a plaintiff’s recovery of damages in an auto accident. In that case, a motorcycle passenger was injured when the motorcycle driver unsuccessfully tried to avoid crashing into the rear end of the defendant’s car. The car was driving 35 miles per hour down the road when he unexpectedly slammed on his brakes for no observable reason.

What is Florida Courts’ “Stuart instruction?”

Published on: July 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As if getting into a car accident and suffering serious injuries weren’t bad enough, some people in Florida find that they are further injured when they go to the hospital to treat their injuries from a car accident. In some cases, the original person or people who caused the accident and injuries are also held responsible for any harm that results when a physician improperly treats the injuries.

In such cases, an attorney may call for a “Stuart instruction,” so called because it comes from the 1977 case Stuart v. Hertz Corporation. This instruction tells the jury that “a tortfeasor is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries.”

A recent appellate case illustrates some of the complications that occur with this rule. In that case, a woman’s vehicle was rear-ended by a male driver. She drove to the hospital complaining of neck and back pain and was diagnosed with whiplash. Although she got follow-up care, the woman still had pain four months later and asked an orthopedic surgeon for his opinion. He diagnosed a muscular injury and disc herniation from the accident and recommended she have a surgery.