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By Debra P. Klauber, Esq.

SECOND DISTRICT CERTIFIES QUESTION TO THE FLORIDA SUPREME COURT ABOUT WHETHER THE WRONGFUL DEATH ACT VIOLATES EQUAL PROTECTION BY EXCLUDING MEDICAL MALPRACTICE CASES FROM THOSE IN WHICH ADULT SURVIVING CHILDREN HAVE A STATUTORY RIGHT TO RECOVER NONECONOMIC DAMAGES AFTER THE LOSS OF A PARENT.

Santiago v. Rodriguez, No. 2D18-3114, 44 Fla. L. Weekly D2562 (Fla. 2d DCA Oct. 18, 2019).

Florida’s Wrongful Death Act allows an adult child to recover non-economic damages for the wrongful death of a parent who is not married at the time of death. However, the statute precludes adult children from recovering those damages when the claim arises out of medical malpractice. The plaintiff argued that the medical malpractice exception violates the equal protection guarantees of the Florida and United States Constitutions. Because the Florida Supreme court upheld this statute in 2000, based on a determination that the statutory exclusion was “rationally related to controlling healthcare costs and accessibility” the trial court followed that law. However, in light of more recent Florida Supreme Court decisions which have concluded that there is no evidence that a medical malpractice crisis still exists, the Second District asked the Florida Supreme Court to reconsider the issue, and certified the following question as one of great public importance:

IN LIGHT OF THE SUPREME COURT’S DECISIONS IN ESTATE OF MCCALL V. UNITED STATES, 134 SO. 3D 894 (FLA. 2014) AND NORTH BROWARD HOPSITAL DISTRICT V. KALITAN, 219 SO. 3D 49 (FLA. 2017), DOES SECTION 768.21(8), FLROIDA STATUTES, VIOLATE THE EQUAL PROTECTION GUARANTEES OF THE UNITED STATES AND FLORIDA CONSTITUTIONS, NOTWITHSTANDING THE COURT’S PRIOR DECISION ON THE ISSUE IN MISRAHI V. NORTH MIAMI MEDICAL CENTER, LTD., 761 SO. 2D 1040 (FLA. 2000).

AN UNEVEN FLOOR, BY ITSELF, DOES NOT CONSTITUTE A LATENT, HIDDEN OR DANGEROUS CONDITION AND, RATHER, IS AN OPEN AND OBVIOUS DANGER ABOUT WHICH A DEFENDANT HAS NO DUTY TO WARN.

Contardi v. Fun Town, LLC, No. 5D18-3518, 44 Fla. L. Weekly D2431 (Fla. 5th DCA Sept. 27, 2019).

The plaintiff was injured at a roller-skating rink when she attempted to step off of the rink and one of her skates got caught between the skating rink floor and the floor of the common area. The trial court granted summary judgment in favor of the defendant, on the basis that the difference in the floor levels was open and obvious, rather than inherently dangerous, thus there was no duty to warn. The appellate court affirmed, citing a number of Florida decisions holding that uneven floor levels in public places, in and of themselves, do not create a latent, hidden or dangerous condition. The decision further notes that the dim lighting did not transform it into a latent danger either.

IN FLORIDA, COSTS ARE AWARDED TO THE “PARTY RECOVERING JUDGMENT,” AS OPPOSED TO THE PREVAILING PARTY.

Sherman v. Sherman, No. 4D18-3578, 44 Fla. L. Weekly D2391 (Fla. 4th DCA Sept. 25, 2019).

The law allowing for the recovery of costs, section 57.041(1) of the Florida Statutes, provides that “[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.” The court receded from prior opinions where it referred to a prevailing-party standard as it pertains to the recovery of costs and recognized that although the party recovering the judgment, and the prevailing party, are often the same, the proper standard for the recovery of costs focuses on the party recovering the judgment, which should not be confused with the prevailing party standard applicable to attorneys’ fees.

APPELLATE COURT AFFIRMS TRIAL COURT ORDER ALLOWING A TRIAL FOLLOWING NON-BINDING ARBITRATION, DESPITE THE FACT THAT PLAINTIFF DID NOT TECHNICALLY COMPLY WITH THE PROVISIONS OF THE RULE FOR REQUESTING A TRIAL DE NOVO.

DeAcosta v. Naples Community Hospital, Inc., No. 2D18-423, 44 Fla. L. Weekly D2402 (Fla. 2d DCA Sept. 25, 2019).

In this medical negligence action, the trial court sent the case to non-binding arbitration. Following the entry of an award, neither party formally moved for a trial de novo. However, the plaintiff did file a statement of facts, identification of disputed facts and identification of issues of law, and the defendant did the same. The trial court subsequently granted the defendant-hospital’s request to enforce the non-binding arbitration decision. The Fourth District reversed, holding that even though the plaintiff had not technically complied with the procedural rule, by filing a formal motion for trial, she had timely indicated her rejection of the arbitrator’s decision and her wish to proceed with the trial. The appellate court’s ruling was based on the facts that: (1) the hospital-defendant had also filed its own acknowledgement that there were disputed issues of fact and law; (2) the defendant had arguably engaged in “gotcha” tactics; and (3) the defendant had not been prejudiced by the lack of a formal request. Ultimately, the court found that the hospital had, by its own actions, waived the plaintiff’s strict compliance with the rule, thus allowing the trial to proceed.

FOURTH DISTRICT EXPLAINS THAT A LEGAL MALPRACTICE CASE MUST BE STAYED UNTIL THE UNDERLYING LITIGATION IS RESOLVED.

Kasowitz Benson Torres, LLP v. Mariano, No. 4D19-1209, 44 Fla. L. Weekly D2353 (Fla. 4th DCA Sept. 18, 2019).

A former client sued his attorneys for negligently drafting documents related to a hedge fund transaction and failing to warn him of the risks of the transaction. His attorneys moved to stay or abate the legal malpractice action until the underlying litigation – between the former client and those who purchased the shares in question – was resolved. The trial court denied the motion to stay and the appellate court granted a writ of certiorari, holding that the legal malpractice claim could not proceed until the underlying litigation determined whether the plaintiff incurred any damages as a result of the purported negligence on the part of his attorneys.

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