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The below content previously appeared in the May/June 2022 issue of the Broward County Bar Association’s Barrister magazine.

By Debra P. Klauber, Esq.

Florida Supreme Court clarifies ruling that prohibits the introduction of Medicare benefits for purposes of a jury’s consideration of future medical expenses.

The Florida Supreme Court attempted to clarify its prior holding that the availability of certain future benefits is not a proper consideration for the jury in evaluating a plaintiff’s damages. Because of the uncertainty of future benefits, which a plaintiff has not yet received and may never receive, it is proper for a trial court to exclude any evidence regarding the plaintiff’s eligibility for future benefits from Medicare, Medicaid, and other social legislation. Although the case clarifies the law on the issue of future damages, concurrent and dissenting opinions seem to raise ongoing questions about the admissibility of such evidence when it comes to the recovery of past medical expenses. Dial v. Calusa Palms Master Ass’n, Inc., SC21-43, 47 Fla. L. Weekly S115 (Fla. April 28, 2022).

Fourth District again addresses medical negligence versus ordinary negligence.

The decedent’s children took her to the hospital with her walker, which she required for assistance. When the hospital did not let her keep the walker, despite repeated requests from her children, she fell trying to get to the bathroom and suffered three fractures to her pelvis which the family claimed was a substantial cause of her death. The personal representative never complied with the presuit requirements set forth in Chapter 766 of the Florida Statutes and, instead, claimed that the case was one for ordinary negligence. The trial court refused to dismiss the case and the Fourth District reversed, holding that the claim involved the nurses’ professional standard of care. While recognizing that some cases fall within a “gray area,” the court attempts to differentiate between claims based on the actions of “nonprofessional employees before any medical care was provided” and decisions directly related to “the use of professional judgment or skill.” Martin Memorial Health Systems, Inc. v. Gorham, 4D21-2949, 47 Fla. L. Weekly D927 (Fla. 4th DCA April 20, 2022).

Appellate court holds that plaintiff must comply with presuit notice requirements set forth in the Assisted Living Facilities Act (ALFA) for common law negligence claim.

The trial court dismissed the plaintiff’s ordinary negligence case based on a slip and fall that resulted in the death of a facility resident. The trial court dismissed the case based on the plaintiff’s failure to comply with the presuit requirements set forth in ALFA, in Chapter 429 of the Florida Statutes. The appellate court agreed, holding that the plain and unambiguous language of the exclusive remedy provision in ALFA applies to cases seeking recovery of damages for injuries caused by negligence. In doing so, the court rejected the plaintiff’s argument that ALFA only covers claims arising from abuse, neglect or deficient care in connection with medical services. Thus, the Act’s presuit requirements, and two-year statute of limitations, are applicable in ordinary negligence cases as well. Cohen v. Autumn Village, Inc., 1D20-2206, 47 Fla. L. Weekly D932 (Fla. 1st DCA April 20, 2022).  

Fourth District allows introduction of evidence as to physician’s “motive” for negligently recommending an allegedly unnecessary procedure.

In this medical negligence case, the trial court allowed the defendant to be questioned about the financial compensation he received from the manufacturer of a medical device used in the procedure in question, in order to suggest that he had a motive for performing an unnecessary medical procedure. The Fourth District held that the trial court did not abuse its discretion in allowing this testimony. Even though motive is not an element of a cause of action for malpractice, it can be relevant to a claim of negligence with respect to the doctor’s decision to recommend a procedure, or to rebut a claim that the procedure was based solely on medical consideration. The Court did reverse the case, in part, based on other issues related to the verdict form and the damages. Healthcare Underwriter’s Group, Inc. v. Sanford, 4D20-2023, 4D20-2026, 47 Fla. L. Weekly D761 (Fla. 4th DCA March 30, 2022).

A spouse who marries a person after an injury takes place is not permitted to recover loss of consortium damages if that patient later dies, but the law should allow the decedent’s adult children to recover damages.

The Fourth District held that a spouse who marries a person after their injury occurs is later barred from recovering damages for loss of the decedent’s companionship and protection or for mental pain and suffering under the Wrongful Death Act. In doing so, the Fourth District certified conflict with a 2018 decision from the Fifth District holding to the contrary. The Fourth District did, however, find that if the spouse is unable to recover, then the decedent’s adult children may recover for lost parental companionship, instruction, and guidance, and for their own mental pain and suffering. Likening the concept to judicial estoppel, the court find that it would prejudice the decedent’s survivors to allow the defendant to preclude the surviving spouse from recovering damages, while also precluding the adult children from recovering because there is a surviving spouse. Ripple v. CBS Corp., 4D20-1939, 47 Fla. L. Weekly D750 (Fla. 4th DCA March 30, 2022).

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