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Workers injured on the job are entitled to receive compensation for injuries. What many workers may not realize, though, is once those payments cease, they could be restarted if there is a material change in condition, stemming from the original injury, which requires additional treatment.gavel22

Florida Statute 440.15 is clear in holding that in instances where subsequent injury is suffered as a result of aggravation of the condition caused by the work-related incident, those injuries are covered. However, it’s going to be up to the worker to prove the causal connection.

Our Sarasota work injury lawyers understand this was the issue raised in Lenz v. Cent. Parking Sys. of Neb. , brought before the Nebraska Supreme Court. Although workers’ compensation statutes vary from state-to-state, the same general principles weighed in this case are applicable to Florida workers.

According to court records, the worker developed frostbite on one of his feet while working outdoors as a parking lot attendant. No one disputed the accident and subsequent injury arose out of the course of his employment.

The company did not fight the worker in covering expenses for his frostbite injury, which included two surgeries. He was also paid temporary total disability benefits totaling $2,250.

The following year, the worker moved out-of-state, though he continued to receive treatment for his frostbite injury. However, he sent his medical bills to his new home state’s indigent care program, rather than to his former employer.

Three years later, he returned to Nebraska. At that time, the ulcers he developed as a result of his frostbite injury still hadn’t healed, and he continued receiving medical treatment. At one point, he had to be hospitalized for an infection of one ulcer that spread to several of his toes, which had to be amputated.

A few months passed, and the worker filed a claim with the state’s workers’ compensation court, asking for temporary total and permanent partial disability benefits, as well as reimbursement for his medical bills and coverage for ongoing rehabilitation. This request was filed more than two years after his last payment from the employer had been received.

The employer responded by allowing the injury was compensable, but argued the claim was barred by the state’s statute of limitations.

The former worker argued his case fell under an exception established in White v. Sears, Roebuck & Co., which allowed benefits to be awarded outside the statute of limitations for a substantial and material worsening of the worker’s condition. A doctor testifying on his behalf indicated the worker did not reach maximum medical improvement until some six months after the partial amputation. The doctor further indicated the worker couldn’t work on a job on his feet or outdoors in cold weather without suffering further ulcers.

The workers’ compensation court agreed to award him benefits. The case was appealed, and was moved to the state supreme court for review. The employer insisted the request was time-barred, but the state supreme court affirmed.

The court noted the exception noted by the worker has been recognized by appellate courts numerous times since it was first established more than 25 years ago. Further, an injured employee can’t bring a claim for additional compensation until the material change has taken place. Therefore, the worker had two years from the time he knew that his condition had materially changed in which to seek compensation – not two  years from the time of the accident. Thus, the worker’s petition was timely filed, and benefits will be awarded.

If you are injured on the job, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Lenz v. Cent. Parking Sys. of Neb. , June 27, 2014, Nebraska Supreme Court

More Blog Entries:

Florida Hit-and-Run Reform Awaits Gov. Scott’s Signature, June 27, 2014, Sarasota Workers’ Compensation Lawyer Blog

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Florida’s 4th District Court of Appeal upheld a trial court’s judgment in favor of a defendant in a personal injury case stemming from a two-truck crash in Esquire v. A&G Concrete Pools, Inc.

Our Cape Coral car accident lawyers understand there were several underlying problems with the case, most notably: Discrepancies in the plaintiff’s testimony regarding the source of his injuries and failure to preserve at least one important issue for appeal. ambulance3

Anytime one suffers injury as a result of a car accident, it’s imperative for injured parties to speak as soon as possible with an experienced injury lawyer to protect their rights.

This case also serves as an important reminder for attorneys that they still must actively object to admission of harmful evidence, even when motions in limine have been filed prior to the start of trial. An amendment to the 2003 rules on such motions have led some attorneys to the conclusion they need not object during the trial. However, such action is necessary to preserve the issues on appeal.

According to the court records, the crash occurred in early 2008, when the plaintiff was a passenger in a truck driven by his co-worker. Another truck, owned and driven by the defendants, was behind them. Both were stopped at a red light and proceeded when the light turned green. However, another vehicle stopped suddenly in front of the plaintiff’s work truck, causing the driver to stop abruptly. The second truck driver says he never saw the brake lights of the vehicle in front of him, which were covered in mud. When he noted the other truck had come to a complete stop, he didn’t have enough time to avoid a crash.

The plaintiff would later testify he was tossed forward and struck his head on the dashboard. He complained of pain at the scene, and told a responding paramedic he had suffered injury from a crash seven years earlier.

He was transported to a nearby emergency room, where he told a doctor he had never experienced prior back or neck problems.

He subsequently went to a chiropractor for several months, and then underwent surgery for his condition. He told that doctor he had never had prior neck or back problems, but when the doctor confronted him with evidence to the contrary, the plaintiff insisted he hadn’t been in pain for some two years prior to the recent crash.

He then received additional treatment from a neurosurgeon, and here again, did not reveal his prior accident. When the doctor learned of the other crash, the plaintiff indicated he made a full recovery from those injuries years earlier.

In fact, he had endured injuries from two crashes in 2001, and continued to take pain medication up until the time of the crash.

A doctor who performed a compulsory medical exam on behalf of the defense asserted he would have used a more conservative measure of treatment than surgery. This was despite a motion in limine granted prior to the trial indicating doctors could not testify the surgeries the plaintiff received were unnecessary.

However, the plaintiff’s attorney never objected to this testimony at trial, meaning it was not preserved for argument upon appeal.

A dissenting justice on the panel argued it was clear the defendant’s expert witness had violated the order set forth in the motion in limine, after the defense counsel asked a question that was contrary to the order.

The plaintiff alternately argued he should be granted a new trial on the grounds the verdict wasn’t fair in light of the evidence. However, the court determined the plaintiff’s own expert witnesses were discredited by defendant’s lack of credibility, because their statements were in part based on his assertion that he suffered no back pain the years prior to the crash. His continuing use of pain medication, however, served as proof otherwise.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Esquire v. A&G Concrete Pools, Inc., July 2, 2014, Florida’s Fourth District Court of Appeal

More Blog Entries:

Florida’s Hit-and-Run reform Awaits Gov. Scott’s Signature, June 26, 2014, Cape Coral Car Accident Lawyer Blog

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A $10 million verdict in favor of a man who lost a leg as a result of a defectively-designed automobile has been vacated on the grounds of improper jury instructions. vintagebluecar

Our Fort Myers defective product attorneys understand the error pertains to the applicable standard of care to which the defendant had to be held. The jury instructions essentially held the defendant to a “community standard” level of responsibility, when the more appropriate standard was one of a “reasonable person.”

When given the facts of the case, it’s understandable how the trial court reached its conclusion. It’s relevant to us in Florida, despite being a New York State Court of Appeals decision, because of the potential implications for future product liability cases involving auto manufacturers in other jurisdictions.

According to court records in Reis v. Volvo Cars of N. Am., this was a situation in which the plaintiff was injured while examining the engine of a friend’s new/old car (new to the friend when he bought it in 2002, but a 1987 model vehicle). While the plaintiff stayed at the front of the vehicle, the owner of the car switched on the ignition so the plaintiff could see the engine running. However, when he did so, the vehicle, a manual transmission stationed in forward gear, lurched forward. The impact pinned the plaintiff to a wall, causing injuries that resulted in a leg amputation.

As it turned out, the auto industry was aware that manual transmission vehicles made at that time had this problem, and many companies had chosen to affix a $5 “starter ignition” to the vehicle in order to avert the problem.

However, the defendant was one of two that did not take this effort. The firm would later argue the part was known to cause other issues, and that, in some cases, the feature allowed motorists to avoid a crash.

The plaintiff sued, arguing negligence and failure to warn.

Ample evidence was presented at trial indicating numerous other car manufacturers had this device installed.

In granting a request by the plaintiff, the trial court allowed inclusion of jury instructions indicating the defendant had special knowledge within the industry and a duty to adhere to customary business practices.

The jury returned a verdict that the defendant was not liable for defective design, but was liable for negligent design. Problematically, these two assertions are essentially the same thing.

Further, while defendants in malpractice cases are held to a standard that indicates negligence as a result of breaching acceptable industry standards for degree of skill and care, the court could find no basis for lumping auto manufacturers into this category.

The court noted in some instances, the difference between the two standards (“reasonable person” and “community”) are not vast, and such an error could be overlooked as inconsequential to the case. However, because this case resulted in a verdict that essentially conflicted with itself (finding for negligent design, but not deficient design), the court held the error was not harmless.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Reis v. Volvo Cars of N. Am., July 1, 2014, New York State Court of Appeals

More Blog Entries:

Florida Medical Malpractice Claims and Medical Diagnosis Hearsay Exception, July 5, 2014, Fort Myers Defective Auto Parts Lawyer Blog

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The U.S. Court of Appeals for the Eighth Circuit recently affirmed a summary judgment in favor of a defendant in a product liability case involving a reportedly defective ladder that plaintiffs alleged caused a serious fall. ladderandsky

The problem for the plaintiffs in Loomis, et al. v. Wing Enterprises Inc. was that expert witness testimony was insufficient to prove several theories of product liability to the court’s satisfaction.

Sarasota product liability attorneys recognize the importance of expert witnesses in these cases. It’s not enough that an accident happened and someone was seriously injured. There must be sufficient proof – prior to trial – that the manufacturer failed in its legal duties to the consumer.

In the Loomis case, the plaintiff was using a certain brand of ladder to hang Christmas lights on the front of her home. This particular ladder is one with “telescoping” capabilities, which allow it to be set in a number of different configurations. She and her husband positioned the ladder in an A-frame, with the height two positions below the maximum. After completing one section, they moved the ladder several feet over to continue. While the plaintiff was reaching, she fell and suffered injury to her foot.

The couple subsequently filed a product liability lawsuit, alleging the ladder was defective and unreasonably dangerous by design.

The expert witness retained was a professor who performed a series of tests on the ladder, and determined that when the ladder was dragged across the driveway, it caused tension in the legs that made it unstable and caused the legs to suddenly shift.

The defendant moved to exclude the professor’s testimony, as well as any evidence of his testing, arguing there wasn’t a connection between the compression tests he conducted and the exact events that occurred during the accident.

The district court weighed the doctor’s testing with the plaintiff’s testimony of what had occurred, and determined the two did not match.

After excluding this evidence, the court looked at whether the plaintiff still had a case, and ruled it was not strong enough. The court granted the defense motion for summary judgment.

The plaintiff appealed. However, the appellate court affirmed, finding the district court did not abuse its discretion in refusing to accept the expert witness testimony.

The plaintiffs acknowledged the professor’s testing included scenarios that were “exaggerated to an extreme,” but argued the basic physics were relevant.

However, the district court cited two different cases – Cowens v. Siemens-Elema AB (1988) and Dunn v. Nexgrill Indus., Inc. (2011) in finding it settled that experimental testing is not admissible absent a foundation showing the tests were conducted in conditions “substantially similar” to those at issue.

Without any additional expert testimony to support their claim, the court concluded the court was “well within its discretion” in making the dismissal.

Cases like this fall under the umbrella of a strict liability claim. That is, the plaintiff seeks to hold the manufacturer liable without regard to fault. In order to do this successfully, the plaintiff has to show:

  • The manufacturer’s relationship to the product.
  • The defect in the product caused an unreasonably dangerous situation.
  • The defect was the proximate cause of the consumer’s injuries.

A product can be considered defective because of an inherent design flaw, a manufacturing defect or an inadequate warning on the product.

Each of these elements requires strict adherence to high standards of evidence. It’s important that your case be vetted by a law firm with experience before you decide to move forward with a claim.

If you have been a victim of a defective product in Sarasota, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Loomis, et al. v. Wing Enterprises Inc. , June 26, 2014, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:

Child Car Seats Among November Automotive Safety Product Recalls, Dec. 10 2012, Sarasota Product Liability Lawyer Blog

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Our car accident attorneys in Naples have come to expect that most auto insurers, when faced with a claim for damages, will do whatever they can to minimize liability. carkeys

One tactic is deployed before the crash even happens. Insurers draft policies with a host of loopholes and verbose exceptions that allow them to deny coverage on a variety of different grounds. However, as the recent ruling by Florida’s First District Court of Appeal in Spaid v. Integon Indemnity Corp. reveals, this can backfire. This is particularly true when the language of the policy is ambiguous, and could be interpreted in a number of different ways.

The 1997 Florida Supreme Court foundation is Berkshire Life Insurance Co. v. Adelberg That was a case in which the insured held a private disability insurance policy with the defendant. When the plaintiff suffered a work-related knee injury, he sought  benefits from the insurer. He was terminated from his post, as he could no longer do the job. He found other, lesser-paying work, but continued to collect benefits because he could no longer work in his previous position. The insurer sought to deny benefits on the grounds that he was not totally disabled.

At issue before the state high court in that case was the language of the policy was ambiguous with regard to occupational terminology. The court held it is a tenant of Florida insurance law that and insurer, as the party drafting the policy,  be bound by it. Further, where the language is ambiguous, it is to be “construed liberally in favor of the insured and strictly against the insurer.”

This brings us back to the Spaid case. Here, the plaintiff was involved in a car accident, a result of which she incurred more than $10,000 in medical bills. Per the policy she held with her insurer, there was an extended personal injury protection clause indicating that “all medical expenses” would be covered. However, the base personal injury protection clause indicated the limit of liability for medical coverage was $10,000 per accident.

It was on this basis the insurer denied the injured woman coverage of anything over $10,000. The trial court sided with the insurer in affirming denial of judgment.

However, the disparity in the policy language was the center of the dispute.

The insurer argued that the intent of the policy language was that all medical expenses would be covered – until that $10,000 limit was reached.

The injured woman argued that per the extended PIP endorsement, the insurer made no reference to a limit on medical coverage liability. To the extent that this specific clause might be seen as ambiguous, she argued, the court had a duty to construe that ambiguity in her favor and against the insurer.

The appellate court agreed. It noted the insurer may well have intended for the coverage to cut off at the $10,000 mark. However, because the policy was not clear on this point, the court had no choice but to reverse the grant of summary judgment and remand the case for further proceedings.

If you have been a victim of a Naples traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Spaid v. Integon Indemnity Corp. , June 18, 2014, Florida’s First District Court of Appeal

More Blog Entries:

Fighting Against Insurers Acting in Bad Faith, June 1, 2014, Naples Car Accident Lawyer Blog

 

 

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As we enter the height of summer, we see greater risk for commercial bus accidents. For group vacations, there is no doubt such excursions are cheaper than air travel. However, they are not necessarily safer.bus6

The recent case of MV Transp., Inc. v. Allgeier illustrates how drivers aren’t always vetted properly, and often don’t perform according to acceptable safety standards. Sometimes, bus company administrators are more concerned with profits and reduction of liability than they are with keeping people safe.

Our Fort Myers accident attorneys understand the Kentucky Supreme Court was tasked with determining whether the trial court erred in allowing evidence of the driver’s struggle with alcoholism and whether the appellate court erred in allowing punitive damages on the claim. The state’s high court sided with the plaintiff, finding these actions appropriate and affirming the $4.2 million verdict awarded for her injuries.

In this case, the defendant was a paratransit bus service contracted by the Louisville Transportation Authority. The bus had equipment designed to accommodate riders who used a wheelchair. The plaintiff, 65, suffers from multiple sclerosis and was a frequent passenger.

The lift on the bus was sometimes obstructed by a misaligned plate. It was the company protocol for the driver to warn the passenger about this problem and also help him or her navigate the process.

However in this case, the driver reportedly did neither as the plaintiff prepared to exit the bus at her stop. As a result, her chair was caught in the lift. When the driver responded by releasing the plaintiff’s safety belt, she fell from the chair to the ground with such force both of her femurs were broken.

Then, instead of immediately calling 911 for emergency medical help, the driver called her employer. The employer sent a supervisor to the scene, arriving 15 to 20 minutes after the accident. Only 20 minutes after the fall were emergency medical services contacted. When they did call, they told paramedics the patient was described as “only having some back pain.” So paramedics didn’t rush, arriving some 40 minutes after receiving the call.

The plaintiff was covered with a thin blanked (the weather was below freezing), and evidence was presented indicating that rather than attend to the plaintiff, the driver and supervisors focused on mitigating their liability. It was later revealed the company had an internal accident response policy that furthered this purpose.

As a result of the incident, the plaintiff remained immobile for nearly a year – first in the hospital and later in a nursing home. Where she was once active, she suddenly was dependent on others for basic hygiene and personal care.

Evidence would later show the driver was an alcoholic living in a rehabilitation facility at the time she was hired by the company. Despite listed company protocol that drivers involved in accidents should be tested for alcohol within two hours, nearly three hours passed before this driver was tested.

The plaintiff sued the company under the doctrine of respondeat superior, alleging the company was grossly negligent in its hiring, training, supervision and retention of the driver.

Before the trial, the judge granted a motion from the defense barring punitive damages.

Following a six-day trial, a jury found the company was vicariously liable for the plaintiff’s injuries. The plaintiff was awarded $75,000 in medical expenses and $4.1 million in compensatory damages.

Upon appeal, the appellate court determined the trial court was wrong to bar punitive damages for the plaintiff, and ordered the case remanded for the purposes of determining an appropriate sum. The court also rejected the defense claim that evidence of the driver’s past addiction and mental health issues was improperly entered.

The appellate court ruling was affirmed by the state’s highest court.

If you have been a victim of a bus accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

MV Transp., Inc. v. Allgeier , June 19, 2014, Kentucky Supreme Court

More Blog Entries:

Limitations Statute Tolled in Cases of Fraudulent Concealment, June 16, 2014, Fort Myers accident lawyer blog

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Courts are generally reluctant to hold third-parties civilly responsible for criminal attacks carried out by others. However,  Naples personal injury lawyers know there are notable exceptions to this primarily in premises liability law, where defendants such as landlords or night club owners may have the advantage of a foreseeable zone of risk. black41

In other words, the defendant knew or should have known the conditions of a property or establishment would be conducive to certain types of crime, and failed to take steps to mitigate that risk.

Recently, in Dorsey v. Reider, the Florida Supreme Court ruled an intoxicated bar patron was liable for an assault carried out by a companion because he blocked the victim’s safe egress and left a weapon accessible in his unlocked vehicle. This created a foreseeable zone of risk which the defendant had a duty to prevent.

Another liability issue we have seen in a few recent cases is that of a domestic violence victim’s duty to warn new paramours or even friends, family and co-workers of potential danger at the hands of the aggressor. The New Hampshire Supreme Court weighed this issue in England v. Brianas. While judges may be especially reluctant to hold a victim accountable, there is a valid question about what responsibility a victim holds when it comes to revealing the potential danger.

In the England case, the defendant previously dated a man unknown to the plaintiff prior to beginning a relationship with the plaintiff. The defendant and her ex-boyfriend separated when he moved out-of-state. When he  moved back to the state, however, he tried to rekindle the romance. She was not interested. This reportedly left him “enraged.” He responded by leaving angry phone messages to her and confronted her with a string of profanities at a restaurant. She also believed he may have been following her, as she noticed tire tracks in her driveway, which she suspected were caused by his truck.

Around this time, the defendant began a new relationship with the plaintiff. She did not tell him about her ex-boyfriend or his reaction to her rejection. Several months after they began dating, they returned to her apartment one night where, unbeknownst to either, the ex-boyfriend had broken in and was waiting. The ex-boyfriend attacked the plaintiff with a knife, stabbing him numerous times and causing serious injury.

The injured man filed a lawsuit against the woman, alleging she should have warned him of the potential danger her ex posed.

A trial court granted the defense’s motion to dismiss, finding there existed no special relationship between the plaintiff and defendant requiring her to warn him of the ex.

The plaintiff appealed.

The state supreme court noted that in order to recover damages for negligence, the plaintiff has to show the defendant owed a duty to the plaintiff, that the duty was breached and that the breach proximately caused the injury. Absent that duty, there is no negligence case.

The court indicated generally, private persons have no duty to shield others from the criminal acts of third parties, though there have been exceptions.

One of those, cited by the plaintiff, was Jobe v. Smith, an Arizona case in which a defendant asked the plaintiff to come over to fix an appliance, knowing her estranged boyfriend, who had a propensity for violence, was in the home. She did not warn the plaintiff that the ex-boyfriend was there. After the plaintiff was attacked, he sued the woman and won when the court held “under certain circumstances, there may be a requirement to provide warnings of hidden perils on the premises’, which includes the presence of a third person.”

However, in the England case, the defendant couldn’t warn the plaintiff about her ex-boyfriend’s presence because she didn’t know he was there either.

The court found that the ex-boyfriend’s previous conduct was not such that the defendant knew or should have known he posed a risk to her new boyfriend. He had never physically harmed her before, and he had never directly threatened the plaintiff.

The trial court’s dismissal was affirmed.

It’s important to note that every scenario is different. Consulting with an experienced personal injury lawyer regarding your circumstances may reveal you are in a stronger position than this plaintiff to bring such a case.

If you are a loved one is injured,  call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

England v. Brianas, June 18, 2014, New Hampshire Supreme Court

More Blog Entries:

Cox v. Wal-Mart – Dangerous Condition Forms Basis of Premises Liability Claim, June 24, 2014, Naples Personal Injury Lawyer Blog

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In filing a Sarasota medical malpractice lawsuit, there are various theories of negligence that our personal injury lawyers might propose. In many cases, claims can be brought on numerous theories, including negligence, breach of fiduciary duty and failure to obtain informed consent. ctscans2

In some instances, those theories could conflict, which was the issue in Gomez v. Saurewein, a case appealed to the Washington State Supreme Court.

The lawsuit was brought after the tragic death of a 32-year-old woman who originally sought treatment for a urinary tract infection. According to court records, the woman suffered from uncontrolled diabetes, which left her immune system compromised, making her more prone to major infections.

In the summer of 2006, she sought treatment at a local hospital for what she believed was a urinary tract infection. Blood and urine samples were taken, and she was sent home the following day. However, two days later, she returned to the emergency room, complaining she was not able to empty her bladder and felt generally ill. Her bladder was drained, she felt better, she was sent home.

The next day, blood cultures taken from her original sample were positive for yeast. The lab contacted her primary care doctor, who expressed concern. A blood infection can be serious. He conferred with an internal medicine specialist, and the two decided if the patient reported her condition improved, it was more than likely a false positive (which occurs with some frequency). However, if she was worse, they would ask her to come in immediately.

The patient said she was feeling better, so the doctors chalked it up to a false positive and moved her next appointment up a week earlier.

Two days later, the lab positively identified the yeast in the patient’s blood as candida glabrata. An infection of this nature is not only serious, it is potentially fatal. The lab entered this information into the record, but failed to inform the doctors or anyone else regarding those results.

Prior to her next visit, the patient’s condition deteriorated. She went to the hospital and was prescribed a general antifungal medication. It’s effective against most strains of yeast, but not against the one she had. When the hospital positively identified the strain of yeast, they stopped using that medication and began using another. However, that medication is highly toxic to the kidneys. The treatment came too late to stop the spread of infection to her internal organs, and she died at the age of 32. Cause of death was listed as cardiac arrest, deprivation of oxygen to the brain and fungal sepsis, stemming from her diabetes.

A medical malpractice action was filed by the patient’s representative, both on the grounds of negligence and failure to obtain informed consent. The judge granted summary judgment to the defense on the informed consent claim, indicating it was precluded in a case of misdiagnosis.

Proceeding on the negligence claim, a jury found the doctor did not deviate from an acceptable standard of care and no damages were awarded.

Upon appeal, the estate raised the issue of whether an informed consent claim could be brought based on the same facts that gave rise to the medical negligence claim for misdiagnosis.

The court noted informed consent and misdiagnosis are two different claims that are applicable under separate circumstances. While acknowledging there could be some overlap, generally, the two can’t be brought together.

In plain terms, a doctor who believes a patient doesn’t have a particular disease or condition can’t be expected to inform the patient about the unknown disease or possible treatments for it.

In a case of misdiagnosis, the court indicated that tacking on a claim of failure to provide informed consent would result in the imposition of a “double liability.”

The court indicated that while plaintiffs are allowed to bring inconsistent claims, proceeding to trial with these must be done cautiously, or else the plaintiff risks confusing the jury.

Here, the defendant doctor either knew she had a yeast infection, which would give rise to the failure to inform claim, or failed to know when he should have, which would be the basis for a negligence claim. The justices held it couldn’t be both.

If you suffered from medical malpractice in Sarasota, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Gomez v. Saurewein, June 19, 2014, Washington State Supreme Court

More Blog Entries:

Tenney v. Shapiro – $8M Verdict for Florida Medical Malpractice Victim, June 14, 2014, Sarasota Medical Malpractice Lawyer Blog

 

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One of the ways the court system ensures that only valid and relevant information is presented in Fort Myers medical malpractice claims is by barring statements made by third parties that can’t be directly substantiated or refuted. This is called “hearsay,” and attorneys on both sides are vigilant in making sure such statements aren’t considered by the jury. businesshandshake

But of course, as in almost every rule of law, there are exceptions. One of the most relevant of those for our injury attorneys is the exception regarding statements for purposes of medical diagnosis and treatment. This exception is recognized at both the state and federal level, as cited in formal rules of evidence.

In Florida, it’s spelled out in Florida Statute 90.803(4). The law says that when a statement is made for the purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment or by an individual who has knowledge of the facts and is legally responsible for a person who is unable to communicate the facts, those statements can be used in court. These would typically be statements that describe a medical history, prior or present symptoms, sensations or pain. The key to the exception is that it must be “reasonably pertinent” to the patient’s diagnosis or treatment.

There are some cases in which this becomes a greater hurdle than in others.

One recent example is Kelly v. Haralampopoulos, a medical malpractice lawsuit in which the issue of medical diagnosis hearsay exception was weighed by the Colorado Supreme Court. While Colorado lacks a state law recognizing this exception, it does abide by the federal rules of evidence (Rule 803(4) ) which essentially says the same thing as the Florida statute.

Here, a patient sought treatment in an emergency room for severe abdominal pain. Testing was conducted, and one scan showed there was a large mass on the man’s liver. In order to learn more about the nature of the growth and whether it was cancerous, the doctor ordered a fine-needle biopsy, which sometimes requires general anesthesia.

Another doctor performed the procedure, during which time the patient suddenly stopped breathing and his heart stopped beating. The team worked to revive the man for 30 minutes. While they were able to prevent his death, the lack of oxygen for an extended amount of time resulted in his being left in a vegetative state.

More than a week later, the family and some close friends, including the man’s ex-girlfriend, met with doctors to talk about what had gone wrong. Shortly after the meeting, the man’s ex-girlfriend pulled the doctor aside and asked whether the  man’s prior cocaine use may have played a role in why his heart stopped. The doctor stated it was possible, but as he was not a cardiologist, he could not say for sure.

That statement became the issue in question when a representative of the patient’s estate filed a wrongful death lawsuit against the doctors and their employer. Plaintiffs immediately sought to exclude the statement, saying it was hearsay. However, the defense countered it fell under the hearsay exception for medical diagnosis.

The trial court denied the plaintiff’s motion, finding the statements were made for the purposes of medical diagnosis and treatment under the federal rule.

The plaintiff appealed, arguing the meeting took place after the man was already in a vegetative state, and therefore treatment and diagnosis was no longer at issue. The appellate court reversed.

That ruling was then appealed by the defense to the state supreme court, which reversed, finding the plain language of the rule indicates that while “treatment” might have a prospective focus, “diagnosis” does not, and the statements fell within that category.

This does not mean the plaintiffs lost the case. What it means is that the defendants will be allowed to broach the issue of the patient’s alleged cocaine use. What plaintiffs do have going for them here is there is no evidence the patient was under the influence of cocaine at the time of the procedure.

If you have been a victim of medical malpractice in Fort Myers, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Kelly v. Haralampopoulos, June 16, 2014, Colorado Supreme Court

More Blog Entries:

Stout v. Cent. Me. Med. Ctr. – Apology Statutes Exclude Admission of Guilt, June 22, 2014, Fort Myers Medical Malpractice Lawyer Blog

 

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Our Southwest Florida injury lawyers urge you and your family to stay safe and enjoy this Forth of July weekend. While there is no shortage of fun activities, you should take extra caution to prevent serious injuries.

fireworks1One common accident we see this time of year involves the use of personal watercraft as well as larger boats. Most people do not own a WaveRunner or Jet Ski, so they will rent them on the beach. While this can be a great time, you want to make sure that the rental company is doing its job to keep you safe. Many of our watercraft-related personal injury cases involve improperly maintained equipment. Sometimes the watercraft will not have proper safety equipment onboard; others involve riders wearing defective personal flotation devices. In other cases, the boats may be fine, but the employees running the rental company will not provide proper training in safety and operation to those renting from them.

Another cause of personal watercraft or boat accidents involves the negligence of other people out on the water, construction debris left in the water, and construction equipment unreasonably close to boating channels.

According to a recent Tampa Bay Times article,  a woman was operating a personal watercraft near Tarpon Springs when she collided with a pontoon boat. She was thrown from the personal watercraft and suffered injuries to her face. She was taken to a local hospital for treatment. Among the most common injuries we see involving personal watercraft accidents are broken bones and cuts and bruises. About 10 percent of the case we see involve head trauma. Continue reading →