By Debra P. Klauber, Esq.

TRIAL COURT TO (HOPEFULLY) ADDRESS CONSTITUTIONALITY OF “SAME SPECIALTY” REQUIREMENT IN MEDICAL NEGLIGENCE CASES.

Riggenbach v. Rhodes, 5D18-1889, 44 Fla. L. Weekly D832 (Fla. 5thDCA March 29, 2019).

A number of recent appellate decisions have dismissed medical malpractice cases where the pre-suit expert retained by the plaintiff was not in the “same specialty” as the named defendant. On rehearing in one such case, the Fifth District remanded the matter with a specific instruction asking the trial court to address the plaintiff’s constitutional arguments, if they have been properly raised.

THIRD DISTRICT REJECTS FOUR NONDELEGABLE DUTY THEORIES OF LIABILITY AGAINST HOSPITAL FOR ITS PURPORTED RESPONSIBILITY FOR INDEPENDENT CONTRACTOR PHYSICIANS.

Tabraue v. Doctors Hosp., Inc., 3D16-1661, 44 Fla. L. Weekly D810 (Fla. 3d DCA March 27, 2019).

Under the particular facts of this case, which involved a patient who died after being treated in both the emergency room and the intensive care unit, the Third District concluded that there was no express nondelegable duty (where the incapacitated patient’s father signed the consent forms), and no common law nondelegable duty (which had not been properly raised by the patient’s family on appeal). The Third District also concluded that there is no statutory nondelegable duty in Florida (aligning itself with the Second District and certifying conflict with the Fourth District on this issue), and no implied contractual nondelegable duty between hospitals and their emergency room patients (again certifying conflict with the Fourth District). Absent a Florida Supreme Court decision, the court expressed that it was “averse to expanding, by judicial dictate, the liability of Florida’s hospitals.”

APPELLATE COURT REVERSES ATTORNEY FEE AWARD BASED ON FAILURE TO ADMIT THE TRUTH OF REQUESTS FOR ADMISSION WHERE REQUESTS ADDRESSED THE ULTIMATE ISSUE RATHER THAN RELEVANT FACTS.

Sentz v. Tracy, 5D18-964, 44 Fla. L. Weekly D829 (Fla. 5thDCA March 29, 2019).

The Fifth District has specifically addressed the question of whether a request for admissions that asks a party to “admit” the ultimate issues in the case can be used to recover attorney’s fees at the conclusion of the case. The answer is a resounding no. Where the requests for admission go to the ultimate issues in the case (negligence, causation, damages), which are hotly contested and in dispute, a fee award is not proper.

FIFTH DISTRICT ADDRESSES THE ISSUE OF THIRD PARTY SPOLIATION AND THE DUTY TO PRESERVE EVIDENCE.

Shamrock-Shamrock, Inc. v. Remark, 5D18-1987, 44 Fla. L. Weekly D1093 (Fla. 5thDCA April 26, 2019).

The Fifth District reiterated that a duty to preserve evidence may arise in third-party spoliation cases based on the existence of a contract, statute, or properly-served discovery request. Where the alleged spoliator was a witness in the case who had been served with a subpoena for deposition (without a preservation request or a duces tecum) before destroying the computer at issue, the court found that there was no duty for her to have preserved potentially relevant evidence. The court refused to accept the underlying plaintiff’s argument that a duty arose when the spoliator had knowledge of or could have foreseen that the litigation would take place. Concluding that such a broad pronouncement would be “tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits,” the court affirmed a summary judgment in favor of the purported spoliator.

FLORIDA CONSTITUTION DOES NOT ALLOW QUALIFIED PATIENTS AND THEIR CAREGIVERS TO GROW, CULTIVATE AND/OR PROCESS THEIR OWN MARIJUANA.

Florida Dept. of Health v. Redner, 1D18-1501, 44 Fla. L. Weekly D873 (April 3, 2019).

Although the Florida Constitution has been amended (Article X, section 29) to allow the use of medical marijuana by qualified patients, and holds that such use is not subject to criminal or civil liability under Florida law, it does not allow them to grow, cultivate or process their own marijuana for personal use. Simply put, without the ability to regulate the cultivation practices, the state agencies would not be able to ensure that qualified patients are safely using that marijuana.