July 1, 2005 through September 30, 2005

MEDICAL MALPRACTICE - TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT AFTER REJECTING TESTIMONY FROM PLAINTIFF'S EXPERT WITNESS REGARDING STANDARD OF CARE - WHETHER EXPERT'S TESTIMONY ACCURATELY REFLECTS STANDARD OF CARE APPLICABLE TO CIRCUMSTANCES OF CASE IS QUESTION OF FACT TO BE RESOLVED BY TRIER OF FACT

Torres v. John E. Sullivan, Jr., M.D.

MEDICAL MALPRACTICE - PRESUIT REQUIREMENTS - LACK OF CORROBORATING MEDICAL OPINION - ERROR TO DISMISS PRISON INMATE'S MEDICAL MALPRACTICE ACTION FOR FAILURE TO COMPLY WITH PRESUIT NOTICE REQUIREMENTS WHERE PLAINTIFF CONTENDED HE WAS UNABLE TO COMPLY WITH REQUIREMENTS AS DEFENDANT WOULD NOT RELEASE HIS MEDICAL RECORDS

Bailey v. Florida Department of Corrections

MEDICAL MALPRACTICE - DISMISSAL PROPER WHERE PLAINTIFF DID NOT PROVIDE AFFIDAVIT OF EMERGENCY ROOMPHYSICIAN BUT RATHER AFFIDAVIT OF OBSTETRICIAN-GYNECOLOGIST

Paley v. Maraj

MEDICAL MALPRACTICE - PRESUIT REQUIREMENTS - SUMMARY JUDGMENT PROPER WHERE PLAINTIFF'S EXPERT'S PRESUIT AFFIDAVIT INSUFFICIENT TO SATISFY STATUTORY PRESUIT NOTICE AND SCREENING REQUIREMENTS AS TO NURSE PRACTITIONER

Largie v. Gregorian

MEDICAL MALPRACTICE - ADMINISTRATIVE LAW - FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN - NOTICE TO PATIENT OF PROVIDER'S PARTICIPATION IN PLAN - ADMINISTRATIVE LAW JUDGE ERRED IN FINDING NOTICE PROVIDED TO BIRTH MOTHER SUFFICIENT TO ADVISE MOTHER THAT HOSPITAL WAS NICA PARTICIPANT, BUT INSUFFICIENT IN REGARD TO PHYSICIANS AND MIDWIFE WHO WORKED AT HOSPITAL CLINIC UNDER CONTRACT WITH HOSPITAL WHERE NOTICE ADVISED MOTHER THAT DEFENDANT'S PHYSICIANSAND CERTIFIED NURSE MIDWIVES WERE PARTICIPATING IN NICA PROGRAM

Sunlife OB/GYN Services of Broward County v. Million

MEDICAL MALPRACTICE - NICA - EXCEPTIONS - WILLFUL AND WANTON DISREGARD FOR HUMAN RIGHTS, SAFETY OR PROPERTY - ADMINISTRATIVE LAW JUDGE PROPERLY FOUND HE LACKED JURISDICTION TO DETERMINE APPLICABILITY OF WILLFUL AND WANTON EXCEPTION TO NICA PLAN EXCLUSIVITY

Rinella v. Abifaraj

MEDICAL MALPRACTICE - DISCOVERY PRIVILEGE - ERROR TOREQUIRE HOSPITAL TO IDENTIFY MEMBERS OF CREDENTIALS COMMITTEE

Palms of Pasadena Hospital v. Rutigliano

NURSING HOMES - WRONGFUL DEATH - PARENT HAS AUTHORITY TO CONTRACT FOR CHILDREN IN OBTAINING MEDICAL CARE - ARBITRATION CLAUSE IN MOTHER'S CONTRACT WITH NURSING HOME FOR CARE OF DAUGHTER DID NOT VIOLATE PUBLIC POLICY AND SHOULD HAVE BEEN ENFORCED BY TRIAL COURT

MN Medinvest Co., L.P. v. The Estate of Melissa Lee Nichols

MEDICAL MALPRACTICE - WRONGFUL DEATH - EXPERT TESTIMONY REGARDING LIFE
EXPECTANCY NOT ESSENTIAL AS JURY COULD DETERMINE PROBABLE LIFE EXPECTANCY OF DECENDENT FROM OTHER EVIDENCE

McQueen v. Jersani

MEDICAL MALPRACTICE - ADMINISTRATIVE LAW - FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ACT - NOTICE TO PATIENT - EXEMPTIONS - EMERGENCY DELIVERY - EMERGENCY TREATMENT AND NOTICE BEING IMPRACTICAL ARE SEPARATE EXEMPTIONS AND NEED NOT BOTH BE PRESENT TO WAIVE NOTICE REQUIREMENT - BRAIN INJURY TO NEWBORN CAUSED BY OXYGEN DEPRAVATION RESULTING IN SUBSTANTIAL MENTAL AND PHYSICAL IMPAIRMENT CREATES REBUTTABLE PRESUMPTION THAT INJURY WAS "BIRTH-RELATED NEUROLOGICAL INJURY"

Orlando Regional Healthcare System, Inc. v. Alexander

MEDICAL MALPRACTICE - SETTLEMENT - TRIAL COURT PROPERLY REFUSED TO ENTER JUDGMENT OF ENFORCEMENT GIVEN PROCEDURAL IRREGULARITIES IN MOTION TO ENFORCE SETTLEMENT - PHYSICIAN'S PENDING BAD FAITH CLAIM AGAINST INSURER FOR ENTERING INTO SETTLEMENT WITHOUT HIS CONSENT MAY NOT BE USED TO DELAY OR IMPAIR ENTITLEMENT OF SETTLING PARTIES TO IMMEDIATE ENFORCEMENT OF SETTLEMENT

Cohen v. Freeman

TORTS - PRISONERS - MEDICAL TREATMENT - MANDAMUS RELIEF PROPERLY DENIED
SINCE PRISON DID NOT HAVE DUTY TO PROVIDE A "PARTICULAR" TREATMENT -  ERROR TO DISMISS COMPLAINT WITH PREJUDICE FOR MONETARY DAMAGES AS NO RESPONSIVE PLEADING HAD BEEN FILED

Hawkins v. Crosby

MEDICAL MALPRACTICE - TRIAL COURT PROPERLY ABATED LAWSUIT AGAINST PHYSICIAN AND HOSPITAL WHERE PLAINTIFF ALLEGED SHE HAD IMPROPERLY BEEN COMMITTED PURSUANT TO BAKER ACT BUT PLAINTIFF HAD FAILED TO FOLLOW CHAPTER 766 PRE-SUIT REQUIREMENTS - CERTIORARIDENIED AS PLAINTIFF FAILED TO DEMONSTRATE IRREPARABLE INJURY AND NO ADEQUATE REMEDY AFTER FINAL JUDGMENT

Blom v. Adventist Health System/Sunbelt, Inc.

April 1, 2005 through June 24, 2005

NURSING HOMES - WRONGFUL DEATH - PUNITIVE DAMAGES - PLANTIFFS PRESENTED SUFFICIENT EVIDENCE TO MAKE REASONABLE SHOWING OF WILLFUL AND WANTON CONDUCT ON PART OF CORPORATE EMPLOYEES THAT EVINCED RECKLIESS DISREGARD OF AND CONSIOUS INDIFFERENCE TO LIFE, SAFTEY AND RIGHTS OF RESIDENTS - INSUFFICIENT SHOWING OF WILLFUL AND WANTON MISCOUNDUCT ON PART OF MANAGING AGENT OR PRIMARY OWNER TO SUPPORT CLAIM OF DIRECT COPORATE LIABLITY - EVIDENCE ESTABLISHED REASONABLE BASIS TO PLEAD CLAIN FOR PUNITIVE DAMAGES BASED ON VICARIOUS LIABILITY

Despain v. Avante Group, Inc.

NURSING HOMES - WRONGFUL DEATH - DEPRIVATION OF RESIDENT'S RIGHTS - NURSING HOME'S NEGLIGENCE IN FAILING TO TAKE CORRECTIVE MEASURES IN FACE OF KNOWN RISK THAT RESIDENT MIGHT SUFFER INJURY FROM FALLS DID NOT AMOUNT TO EGREGIOUS CONDUCT SUFFICIENT TO SUSTAIN AWARD OF PUNITIVE DAMAGES

Williams v. Tandem Health Care of Florida, Inc.

MEDICAL MALPRACTICE - LIMITATION OF ACTIONS - TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT ON GROUND ACTION BARRED BY MEDICAL MALPRACTICE STATUTE OF REPOSE - PLAINTIFF'S RADIATION BURNS AS RESULT OF USE OF RADIATION EQUIPMENT IN CONNECTION WITH HEART PROCEDURES AT HOSPITAL OCCURRED IN CONNECTION WITH MEDICAL DIAGNOSIS, TREATMENT AND CARE PROVIDED BY HEALTH CARE PROVIDERS - STATUTE OF REPOSE DOES NOT VIOLATE CONSTITUTIONAL MANDATE OF ACCESS TO COURTS EVEN WHEN APPLIED TO CAUSE OF ACTION WHICH DID NOT ACCRUE UNTIL AFTER PERIOD EXPIRED

Best v. Lakeland Regional Medical Center, Inc.

MEDICAL MALPRACTICE - EXPRESS AUTHORIZATION - PLAINTIFF'S PRODUCTION OF PSYCHIATRIC RECORDS ACTED AS WAIVER TO OBJECTION TO TREATING PSYCHIATRIST'S DEPOSITION

Lifemark Hospitals of Florida v. Izquierdo

MEDICAL MALPRACTICE - JURY SELECTION - TRIAL COURT ERRED IN DENYING  CHALLENGE FOR CAUSE OF JUROR WHO HAD WORKED AS DEFENSE MEDICAL MALPRACTICE INVESTIGATOR AND WHOSE COMMENTS RAISED SIGNIFICANT DOUBT CONCERNING HIS ABILITY TO BE IMPARTIAL - DEFENSE COUNSEL MADE IMPROPER COMMENTS REGARDING DEFENDANT'S ALTRUISTIC CHARACTER AND LOVE OF CHILDREN

Bell v. Greisman

MEDICAL MALPRACTICE - BIRTH-RELATED NEUROLOGICAL INJURY PLAN - ADMINISTRATIVE LAW JUDGE DETERMINED DEFENDANT MEDICAL PROVIDERS FAILED TO GIVE PROPER NOTICE UNDER NICA - TIMELY APPEAL OF ADMINISTRATIVE LAW JUDGE'S DETERMINTATION PRECLUDED TRIAL COURT FROM LIFTING STAT OF PROCEEDINGS IN UNDERLYING ACTION

De Souza v. Ortiz

MEDICAL MALPRACTICE - SUBSTITUTION OF PARTY UPON DEATH OF PARTY - PERSONAL REPRESENTATIVE - DISMISSAL OF CASE FOR FAILURE TO TIMELY SUBSTITUTE SUCCESSOR PERSONAL REPRESENTATIVE PURSUANT TO RULE 1.260 IMPROPER - ESTATE AND ITS SURVIVORS ARE REAL PARTIES IN INTEREST, PERSONAL REPRESENTATIVE IS MERELY NOMINAL PARTY

The Estate of Miriam Morales v. Iasis Healthcare Corporation

MEDICAL MALPRACTICE - BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN -ADMINISTRATIVE LAW JUDGE HAS NO JURISDICTION TO RULE ON CLAIM OF CERTIFIED NURSE MIDWIFE THAT SHE IS IMMUNE FROM CIVILACTION FOR DAMAGES BY VIRTUE OF PROVISIONS OF F.S 766.303 (2)

Depart v. Macri

NURSING HOMES - TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ORDERING DEFENDANT TO DELIVER INCIDENT REPORTS TO PLAINTIFF WITHOUT REQUIRING PLAINTIFF TO SHOW NEED AND INABILITY TO OBTAIN EQUIVALENT INFORMATION WITHOUT UNDUE HARDSHIP - ARGUMENT OF COUNSEL INSUFFICIENT TO PROVE NEED AND UNDUE HARDSHIP

Tampa Medical Associates, Inc. v. The Estate of Hilda Claramunt Torres

NURSING HOMES - WRONGFUL DEATH -  PARENT HAS AUTHORITY TO CONTRACT FOR THEIR CHILDREN IN OBTAINING MEDICAL CARE - ARBITRATION CLAUSE IN MOTHER'S CONTRACTWITH NURSING HOME FOR CARE OF DAUGHTER DID NOT VIOLATE PUBLIC POLICY AND SHOULD HAVE BEEN ENFORCED BY TRIAL COURT

MN Medinvest Co., L.P. v. The Estate of Melissa Lee Nichols

MEDICAL MALPRACTICE - WRONGFUL DEATH - CONCURRING CAUSE INSTRUCTION NOT APPROPRIATE WHERE NO EVIDENCE PRESENTED TO SUPPORT ARGUMENT THAT DEFENDANT'S NEGLIGENCE WAS BUT ONE OF TWO OR MORE CAUSES OF DECEDENT'S DEATH - TRIAL COURT ABUSED DISCRETION IN GRANTING PLAINTIFF'S MOTION FOR NEW TRIAL ON GROUND THAT COURT SHOULD HAVE GIVEN CONCURRING CAUSE INSTRUCTION

Krolick v. Monroe

NURSING HOMES - DEPRIVATION OF RESIDENT'S RIGHTS - ARBITRATION CLAUSE IN NURSING HOME ADMISSION CONTRACT SIGNED BY RESIDENT'S SON WHICH PROVIDED THAT "ANY ACTION, DISPUTE, CLAIM OR CONTROVERSY OF ANY KIND ... NOW EXISTING OR HEREAFTER ARISING BETWEEN THE PARTIES ... SHALL BE RESOLVED BY BINDING ARBITRATION" LIMITED REMEDIES CREATED BY LEGISLATURE IN NURSING HOME RESIDENT'S ACT AND THEREFORE VOID AS CONTRARY TO PUBLIC POLICY - WAIVING RIGHT TO BRING ACTION TO ENFORCE VIOLATION OF NURSING HOME RESIDENT'S ACT IN COURT NOT A HEALTH CARE DECISION THAT CAN BE MADE BY HEALTH CARE PROXY

Blankfeld v. Richmond Health Care, Inc.

MEDICAL MALPRACTICE - TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING PLAINTIFF'S MOTION FOR NEW TRIAL - DEFENDANT ATTORNEY'S COMMENTS DID NOT RESULT IN UNFAIR TRIAL FOR PLANTIFF

Castillo v. Bush

MEDICAL MALPRACTICE - JURORS - CHALLENGES - ERROR TO REFUSE TO EXCUSE JURORS WHO EXPRESSED NEGATIVE OPINIONS ABOUT LAWSUITS BROUGHT AGAINST DOCTORS AND ADMITTED THEY WERE NOT CERTAIN THEY COULD SET OPINIONS ASIDE - NEW TRIAL REQUIRED WHERE PLAINTIFF EXERCISED PEREMPTORY CHALLENGES TO EXCUSE TWO JURORS AND WAS FORCED TO ACCEPT AN "OBJECTIONALE" JUROR BECAUSE PEREMPTORY CHALLENGES EXHAUSTED

Somerville v. Huja

January 7, 2005 through March 25, 2005

MEDICAL MALPRACTICE - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - IMPACT RULE PREVENTS CAUSE OF ACTION INVOLVING LOSS OF 15-18 WEEK FETUS - QUESTION CERTIFIED

MEDICAL MALPRACTICE - NOTICE TO DEPARTMENT OF FINANCE NOT SUFFICIENT TO PUT STATE ON NOTICE THAT CLAIN ALSO BEING MADE AGAINST HOSPITAL DISTRICT WHICH WAS POLITICAL SUBDIVISION OF STATE - STATUTE OF LIMITATIONS HAD EXPIRED AND FAILURE TO NOTIFY DEPARTMENT COULD NOT BE CURED

MEDICAL MALPRACTICE - WITNESSES - TRIAL COURT ABUSED DISCRESTION IN LIMITING NUMBER OF TREATING PHYSICIANS PLANTIFFS COULD CALL - ERROR COMPUNDED WHEN COURT PERMITTED DEFENDANTS TO READ INTO RECORD DEPOSITION TESTIMONY OF WITNESSES WHICH COURT HAD PRECLUDED PLANTIFF FROM CALLING - PEREMPTORY CAHLLENGES - TRIAL COURT DID NOT ERR IN PRECLUDING EXERCISE OF JUROR BACKSTRIKE - ISSUE NOT PRESERVED FOR APPELLATE REVIEW SINCE OBJECTIONS NOT RENEWED PRIOR TO JURY BEING SWORN

GENERAL RELEASE EXECUTED IN PREMISES CASE BARRED SUBSEQUENT MEDICAL MALPRACTICE SUIT

Broz v. Rodriguez

NURSING HOMES - WRONGFUL DEATH - ERORR TO ORDER DECENDANT'S ESTATE'S CLAIMS TO ARBITRATION BASED ON ARBITRATION CLAUSE IN CONTRACT BETWEEN OWNER AND OTHER DEFENDANTS WHERE RESIDENT NEITHER SIGNATORY TO NOR THIRD-PARTY BENEFICIARY OF ARBITRATION AGREEMENT IN CONTRACT - PERSONAL REPRESENTATIVE DID NOT WAIVE OBJECTION TO ARBITRATION BY RELYING ON CONTRACTS TO SHOW DEFENDANTS WHO PROVIDED MANAGEMENT AND ACCOUNTING SERVICES HAD DUTY AND BREACHED IT

Germann v. Age Institute of Florida

MEDICAL MALPRACTICE - HOSPITAL NOT LIABLE FOR UNSATISFIED JUDGEMENT AGAINST UNINSURED PHYSICIAN WHO HAD PRIVILEGES AT HOSPITAL - CONFLICT CERTIFIED

Plantation General Hospital v. Horowitz

MEDICAL MALPRACTICE - NICA - ADMINISTRATICE LAW JUDGE ONLY HAS JURISDICTION UNDER NICA TO DETERMINE WHETHER CHILD SUFFERED NEUROLOGICAL INJURY COMPENSABLE UNDER ACT - NEITHER GIVING OF NOTICE OR FAILURE TO GIVE NOTICE IS ELEMENT OF COMPENSABILITY AS DEFINED BY ACT - ALJ EXCEEDED JURISDICTION IN FINDING FAILURE TO GIVE NOTICE BY PHYSICIAN WAS NOT HARMLESS AND BY ADDRESSING ISSUE OF NOTICE AT ALL

Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association

NURSING HOMES - WRONGFUL DEATH - TRIAL COURT PROPERLY STRUCK NON-ECONOMIC DAMAGES AWARD TO DECEASED RESIDENT'S ADULT SURVIVING CHILDREN - TRIAL COURT CORRECTLY DECIDED THAT PLANTIFF'S PROFFER INSUFFICIENT TO ALLOW PLANTIFF TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES CLAIM

The Estate of Lucille Williams v. Tandem Health Care of Florida

MEDICAL MALPRACTICE - TRIAL COURT PROPERLY GRANTED PLANTIFF'S MOTION FOR NEW TRIAL DUE TO COMMENTS BY DEFENSE COUNSEL DURING CLOSING ARGUMENT THAT COULD HAVE "IMPLIED" THAT CO-DEFENDANT PHYSICIAN HAD SETTLED BEFORE TRIAL - TRIAL COURT PROPERLY ADMITTED TESTIMONY BY DEFENDANT'S EMPLOYEE REGARDING INSTRUCTIONS SHE WAS GIVEN PERTAINING TO DECENDENT BECAUSE EMPLOYEE'S STATEMENTS WERE NOT HEARSAY

Vucinich v. Ross

MEDICAL MALPRACTICE - EVIDENCE - EXPERT - ERROR TO EXCLUDE TESTIMONY NEUROLOGIST SPECIALIZING IN PEDIATRICS ON GROUND TESTIMONY NOT BASED ON SUFFICIENTLY ESTABLISHED SCIENTIFIC PRINCIPLE OR DISCOVERY - WITNESS'S OPINION ON CAUSATION OF CHILD'S CONDITION BASED SOLELY ON HIS EXPERIENCE AND TRAINING, AND NOT ON ANY NOVEL SCIENTIFIC PRINCIPLE OR PROCEDURE, DID NOT REQUIRE FRYE ANALYSIS

Gelsthorpe v. Weinstein

MEDICAL MALPRACTICE - SEXUAL BATTERY - PRESUIT NOTICE AND SCREENING REQUIREMENTS DO NOT APPLY TO CLAIM AGAINST HEALTH CARE FACILITY FOR NEGLIGENT SUPERVISION OR RETENTION OF DOCTOR ACCUSED OF SEXUAL MISCONDUCT DURING MEDICAL EXAMINATION - CLAIM OF SEXUAL MISCONDUCT
BY DOCTOR DURING MEDICAL EXAMINATION OR PROCEDURE IS NOT "CLAIM ARISING OUT OF RENDERING OF MEDICAL CARE OR SERVICES"

Burke v. Snyder

MEDICAL MALPRACTICE - WRONGFUL DEATH - NOTICE OF INTENT TO INITIATE LITIGATION - CORROBORATING MEDICAL EXPERT - ERROR TO DISQUALIFY EXPERT, STRIKE EXPERT'S PRESUIT AFFIDAVIT, AND BECAUSE STATUTE OF LIMITATIONS HAD R UN, DISMISS CASE WITH PREJUDICE AS SANCTION FOR EXPERT'S MISSTATEMENT IN PRESUIT AFFIDAVIT THAT HIS PREVIOUS MEDICAL EXPERT OPINION HAD NOT BEEN DISQUALIFIED WHEN IN FACT IT HAD

DeCristo v. Columbia Hospital Palm Beaches

MEDICAL MALPRACTICE - HOSPITAL NOT LIABLE FOR JUDGMENT AGAINST PHYSICIAN WITH STAFF PRIVILEGES - PHYSICIAN HAD OPTED OUT OF FINANCIAL RESPONSIBILITY REQUIREMENTS BY AGREEING TO BE PERSONALLY RESPONSIBLE FOR PAYMENT OF FIRST $250,000 OF JUDGMENT - SUMMARY JUDGMENT FINDING HOSPITAL LIABLE FOR $250,000 OF MEDICAL MALPRACTICE JUDGMENT AGAINST PHYSICIAN AFTER PHYSICIAN F ILED FOR BANKRUPTCY IMPROPER - HOSPITAL ENTITLED TO RELY ON STAFF-PRIVILEGE PHYSICIAN'S EXERCISE OF STATUTORY RIGHT TO BE PERSONALLY LIABLE FOR JUDGEMENTS UP TO $250,000

North Miami Medical Center, Ltd. v. Miller

MEDICAL MALPRACTICE - WITNESSES - TRIAL COURT ABUSED DISCRETION IN LIMITING NUMBER OF TREATING PHYSICIANS PLAINTIFFS COULD CALL TO THREE AND ALLOWING DEFENSE COUNSEL TO REFERENCE PLAINTIFF'S TREATING PHYSICIANS DURING CLOSING ARGUMENT WITHOUT PERMITTING PLAINTIFF'S COUNSEL TO EXPLAIN TO JURY WHY PLAINTIFFS HAD ONLY CALLED THREE PHYSICIANS TO TESTIFY - ERROR COMPOUNDED WHEN COURT PERMITTED DEFENSE COUNSEL TO READ INTO RECORD DEPOSITION TESTIMONY OF WITNESSES WHICH COURT HAD PRECLUDED PLAINTIFFS FROM CALLING - JURORS - PREEMPTORY CHALLENGES - CLAIM THAT COURT ERRED IN PRECLUDING EXERCISE OF JUROR BACKSTRIKE NOT PRESERVED FOR APPELLATE REVIEW WHERE OBJECTION NOT RENEWED PRIOR TO JURY BEING SWORN

Gonzalez v. Martinez

NURSING HOMES - ARBITRATION - WHERE NURSING HOME FILED MOTION TO COMPEL A RBITRATION PURSUANT TO ARBITRATION CLAUSE IN NURSING HOME ADMISSION AGREEMENT, AND PLAINTIFF DISPUTED EXISTENCE OF AGREEMENT TO ARBITRATE, TRIAL COURT ERRED IN DENYING MOTION TO COMPEL ARBITRATION WITHOUT CONDUCTING EVIDENTIARY HEARING

Tandem Health Care of St. Petersburg, Inc. v. Whitney

NURSING HOMES - WRONGFUL DEATH - ARBITRATION - TRIAL COURT PROPERLY
DENIED MOTION TO COMPEL ARBITRATION PURSUANT TO ARBITRATION PROVISION CONTAINED IN CONSULTING AGREEMENT AS IT WAS NOT SIGNED BY RESIDENT AND UNDER WHICH RESIDENT NOT AN INTENDED THIRD PARTY BENEFICIARY

Extendicare Health Services, Inc., et al. v. Estate of Benjamin Patterson

MEDICAL MALPRACTICE - WRONGFUL DEATH - STATUTE OF REPOSE - TRIAL COURT PROPERLY DISMISSED WRONGFUL DEATH ACTION BROUGHT ON BEHALF OF PLAINTIFF AND HIS FOUR-YEAR- OLD SON WHERE CLAIM AROSE FROM DEATH OF PLAINTIFF'S WIFE/ CHILD'S MOTHER FROM MISDIAGNOSED OVARIAN CANCER AND ACTION B ROUGHT MORE THAN FOUR YEARS AFTER ALLEGED MISDIAGNOSIS - SEVEN YEAR STATUTE OF REPOSE APPLICABLE TO ACTIONS "BROUGHT ON BEHALF OF MINOR" APPLIES ONLY TO CASES BROUGHT ON BEHALF OF CHILD INJURED BY MEDICAL MALPRACTICE AND DOES NOT EXTEND TO CASES BROUGHT ON BEHALF OF A CHILD FOR WRONGFUL DEATH OF PARENT

Childers v. Cape Canaveral Hospital, Inc.

NURSING HOMES - WRONGFUL DEATH - PETITION FOR WRIT OF CERTIORARI SEEKING REVIEW OF NON-FINAL WRITTEN ORDER SEVERING MAIN TRIAL AGAINST NURSING HOME OWNER WHICH ALLEGEDLY NEGLIGENTLY ALLOWED FIRE ANTS TO BITE RESIDENT FROM TRIAL OF THIRD-PARTY COMPLAINT FILED BY NURSING HOME AGAINST PEST CONTROLSERVICE - OWNER FAILED TO ESTABLISH ENTITLEMENT TO CERTIORARI RELIEF

Mariner Health Care v. Griffith

MEDICAL MALPRACTICE - SEPARATE OFFERS OF JUDGMENT FOR UNEQUAL AMOUNTS MADE TO PHYSICIAN AND PHYSICIAN'S VICARIOUSLY LIABLE EMPLOYER PERMITTED BY STATUTE AND RULE

Hess v. Musculoskeletal Insitute Chartered, d/b/a Florida Orthopedic Insitute

THE CONTINUING VIABILITY OF THE APPLICATION OF STUART V. HERTZ IN MEDICAL MALPRACTICE ACTIONS

October 1, 2004 Through December 31, 2004

Nursing Homes - Personal Representative Not Authorized To Bring Statutory Cause Of Action Under F.S. § 400.023(1) (1997) For Wrongful Death Of Nursing Home Resident Due To Alleged Infringement Of Resident's Statutory Rights Under F.S. § 400.022 (1997) Where Infringement Did Not Cause Resident's Death

Medical Malpractice - Nica - Election Of Remedies - Claimants Barred From Seeking Recovery In Malpractice Case Because They Had Already Obtained An Administrative Determination Of Nica Eligibility

Nursing Homes - Violation Of Resident's Rights - Torts - Breach Of Fiduciary Duty - Discovery - Trial Court Did Not Depart From Essential Requirements Of Law In Ordering Production Of Medical Records Of Non-Party Residents Who Resided At Nursing Home Facility While Decedent Was Resident - Error To Fail To Provide For Redaction Of Identifying Information To Protect Privacy Rights Of Non-Parties

Wrongful Death - Nursing Homes - Deprivation Of Resident's Rights - Alleged Violation Of Decedent's Rights Must Be Legal Cause Of Death - Conflict Certified

Medical Malpractice - Evidence - Expert Witness May Render Opinion Based In Part But Not Solely On Inadmissible Evidence - Party May Present Expert Opinion Based In Part On Hearsay Statement Even If Statement Not Admissible As Evidence By Itself - Acceptable For Expert To Consult With Other Experts In Same Field In Formulating Opinion As To Standard Of Care

Nursing Homes - Arbitration - Contracts - Arbitration Agreement Enforceable Against Blind Person - Failure To Read Contract Not Defense To Enforcement Of Contract

Medical Malpractice - Civil Procedure - Jurors - New Trial Required Where Trial Court Refused Plaintiff's Request To Exercise Peremptory Challenge To Juror Prior To Jury Being Sworn - Party May Exercise Unused Peremptory Challenge At Any Time Prior To Jury Being Sworn Even If Main Panel Is Accepted And Parties Are Selecting Alternates

Medical Malpractice - Wrongful Death - Statute Of Limitations Commenced When Plaintiff Became Aware Of Death And Reasonable Possibility That Death Caused By Negligence - Plaintiff's Failure To Discover Identity Of Doctor Ordering Decedent Admitted To Hospital Did Not Toll Statute Of Limitations

Expert Witness - Evidence - New Trial Properly Granted After Defense Verdict Where Defense Improperly Bolstered Its Expert's Opinions On Redirect Examination By Identifying Specific Authoritative Publications Regarding Causation

Administrative Law - Board Of Osteopathic Medicine - Under F.S. § 456.072 Board Can Discipline Physician For Acts Occurring In Course Of Different Specialty Of Medicine In Different Jurisdiction - Board Erroneously Revoked License To Practice Osteopathic Medicine Based On Revocation Of License To Practice Allopathic Medicine In Foreign State Where Administrative Complaint Failed To Allege That License To Practice In Foreign State Was Revoked For Violation Of Foreign State's Law Which Would Also Constitute Violation Of Florida Law

Nursing Homes - Error To Dismiss Complaint With Prejudice - Chapter 400 Remedies Do Not Preclude Right To Bring Common Law Negligence Claim

Medical Malpractice - Strict Liability - Hospital Not Liable To Plaintiffs For Unsatisfied Judgment Obtained Against Uninsured Staff Physician - Question Certified

Medical Malpractice - Failure To Prosecute - Plaintiff's Filing Notice Of Taking C0-Defendant Deposition Insufficient To Avoid Dismissal Of Action For Failure To Prosecute When Plaintiff Knew Deposition Could Not Go Forward

July 2, 2004 Through September 24, 2004

Medical Malpractice - Wrongful Death - Arbitration Provisions Of 2002 Medical Malpractice Act Not Limited By Wrongful Death Act

Wrongful Death - Pharmacist Should Have Warned Of Danger And/Or Inquired Of Physician Whether Prescription Should Be Filled

Medical Malpractice - No Evidence That Nurse Accessing Chain Of Command Would Have Altered Outcome - Expert Properly Allowed To Offer Supplemented Opinion Based On Other Doctor's Testimony At Trial - Directed Verdict On Negligent Supervision Of Graduate Nurse Properly Denied As Defendant Presented Evidence Sufficient To Submit Claim To Jury

Peremptory Challenges - Racial Discrimination - Trial Court Improperly Based Decision To Disallow Strike On Credibility Of Juror - Proper Standard Is Genuineness Of Lawyer's Reasons For Peremptory Challenge

Medical Malpractice - Nica - Election Of Remedies - Trial Court Did Not Err In Finding That Claimants Could Either Accept Nica Benefits Or Proceed With Civil Suit But Claimants Could Not Do Both Under 1994 Nica Statute - Claimant Who Obtained Administrative Determination Of Nica Eligibility Not Entitled To Maintain Suit

Medical Malpractice - Pre suit Requirements - Trial Court Did Not Err In Dismissing Plaintiff's Third Amended Complaint With Prejudice - Plaintiff Failed To Obtain Verified Written Medical Expert Opinion To Corroborate Malpractice Claim - Defendant Hospital Did Not Waive Affidavit Requirement By Failing To Timely Respond To Plaintiff's Record Request - Any Delay In Receiving Requested Medical Records Caused By Plaintiff

Administrative Law - Board Of Medicine - Portion Of Administrative Rule Requiring Surgeon In Outpatient Facility To Have Licensed M.D. Or D.O. Anesthesiologist Present To Supervise Administration Of Anesthesia Invalid - Exercise Of Delegated Legislative Authority - Board Exceeded Its Rulemaking Authority By Adopting Practice Standard For Physicians That Precluded Provision Of Anesthesia In All Level Iii Outpatient Surgeries By Certified Registered Nurse Anesthetist Supervised By Surgeon

Nursing Homes - Deprivation Of Resident's Rights - Error To Grant Directed Verdict In Favor Of Individual Who Was Managing Member Of Limited Liability Company That Managed Nursing Home And Principal Of Corporation That Managed Limited Liability Company - Abuse Of Discretion To Exclude From Punitive Damages Phase Of Trial Evidence Of Prior Verdict That Awarded Punitive Damages Against Two Corporations Which Were Defendants In Subject Case

Nursing Homes - Discovery - Error To Compel Defendant Nursing Home To Produce Grievance Logs Of Consumer And Employee Complaints - Trial Court Should Hold In-Camera Inspection Of Documents On Remand - If Documents Are Incident Reports They Would Be Subjected To Discovery Upon Showing Of Need And Inability To Obtain Substantial Equivalent From Other Sources

Medical Malpractice - Wrongful Death - New Trial Order Improper Because Record Did Not Demonstrate That Court's Evidentiary Rulings Substantially Prejudiced Plaintiff Resulting In Miscarriage Of Justice

Medical Malpractice - Trial Court Did Not Abuse Discretion In Denying Mid-Trial Motion To Strike Juror Who May Have Been Treated By One Of Defendant Medical Groups Where Juror's Interest In Case So Remote It Was Ruled Not To Be Material

Medical Malpractice - Court Finding Of Sovereign Immunity For Physician Group Case Specific And Not General Finding

Nursing Homes - Violation Of Resident's Rights - Trial Court's Instruction To Jury That It Had To Find That Deprivation Or Infringement Of Rights Must Have Resulted In Resident's Death Harmless Error

Administrative Law - Agency For Health Care Administration - Assisted Living Facilities - Agency Erred In Not Considering Mitigating Factors After Imposing Fines For Assisted Living Facility's Failure To Provide Timely Refund Of Advanced Payments To Resident Who Vacated Facility - 45 Day Period Properly Calculated From Date Resident Moved From Facility Rather Than Date Which Resident's Financial Commitment To Facility Ended Under Contract

Medical Malpractice - Administrative Law - Florida Birth-Related Neurological Injury Compensation Plan (Nica) - Notice - Administrative Law Judge Has Subject Matter Jurisdiction To Determine Whether Plaintiff Properly Received Notice From Physician Regarding Physician's Participation In Nica - Alj Incorrectly Applied Presumption That Nica Plan Brochure Delivered To Plaintiff - Error Not Harmless Because Burden On Health Care Provider To Demonstrate Participation In Nica Plan

Civil Procedure - Default - Excusable Neglect - No Abuse Of Discretion In Refusing To Vacate Default

Medical Malpractice - Arbitration - Where Defendant In Medical Malpractice Action Had Denied Claim, Defendant Did Not Admit Liability By Agreeing To Arbitrate Under F.S. § 766.207 - Trial Court Properly Denied Plaintiff's Petition To Enforce Arbitration Where Plaintiff's Offer To Arbitrate Preceded By Defendant's Written Rejection Of Claim

Wrongful Death - Certiorari - Developmentally Disabled Persons - Action Alleging Defendants Breached Statutory Duty To Decedent, A Developmentally Disabled Person, Under Bill Of Rights Set Forth In F.S. § 393.13 - Decedent Excessively Medicated Causing Death - Complaint Should Have Been Dismissed For Failure To Comply With Presuit Screening Requirements Of Medical Malpractice Act As Decedent Not "Client" Of Department Of Children And Family Services - Standard Of Care Applicable To Lawsuits Seeking To Enforce Rights Of Developmentally Disabled Person Applies Only To "Client" Of Department Of Children And Family Services

April 1, 2004 Through June 30, 2004

Medical Malpractice - Damages - Set-Off - Defendant Entitled To Set Off Against Economic Damages Portion Of Award Against One Tortfeasor In Medical Malpractice Action The Economic Damages Portion Of Any Settlement Recovered From Settling Tortfeasor For Same Incident Even Though Settling Tortfeasor Not On Verdict Form

Medical Malpractice - Wrongful Death - Presuit Screening Requirements - Corroborating Medical Opinion - Nurse May Provide Expert Opinion Regarding "Causation" During Presuit

Medical Malpractice - Insurance Coverage - Where Policy Provided Coverage For Only One Named Physician And Her Professional Association, Which Was Additional Insured, Trial Court Properly Found No Coverage For P.A. For Malpractice Claim Against Another Physician Employed By P.A. - Trial Court Erred In Denying Professional Association's Motion To Amend Pleadings To Include Claim That Insurer Estopped From Denying Coverage

Medical Malpractice - Concurring Cause - Jury Instruction - "But For" Language Of Instruction On Legal Cause May Have Confused Or Misled Jury - New Trial Warranted

Medical Malpractice - Extension Of Statute Of Limitations - Trial Court Erred In Dismissing Plaintiff's Second Amended Complaint Which Sufficiently Pled Allegations Of Defendant's Fraud And Concealment Of Injury Sustained By Plaintiff During Operation

Medical Malpractice - Nica - Administrative Law Judge Has No Authority To Determine Issues Of Notice In Determining Whether Injury Compensable Under Nica - Administrative Law Judge's Responsibility Is To Determine Whether Injury Is Birth-Related Neurological Injury And Whether Delivery Performed By Participating Physician

Medical Malpractice - Wrongful Death - Harmless Error To Permit Defense Expert To Refer To Medical Literature On Cross-Examination Where Only A Single Comment Made To Literature And Much Of Complained Of Surprise Due To Plaintiff's Failure To Conduct Thorough Deposition Of Defense Expert

Medical Malpractice - Plaintiff's Injuries Were Result Of Hospital's Employee Negligently Kicking Plaintiff - Injury Did Not Arise Out Of Medical Care - Plaintiff Not Required To Prove Actions Of Employee Departed From Standard Of Care

Medical Malpractice - Proper To Enter Summary Judgment Against Corporation For Failure To Obtain Counsel Only As To Liability And Liquidated Damages - Corporation Still Entitled To Litigate Issue Of Non-Economic Damages - Error To Enter Summary Judgment Against Physician As Material Issue Of Fact Existed Regarding Causation

Nursing Homes - Wrongful Death - Apportionment Of Damages - Trial Court Did Not Err In Including Non-Party Hospital On Verdict Form As Fabre Defendant When Personal Representative Alleged Nursing Home Deprivation Caused Resident's Death - Evidence Presented Indicated Hospital Negligent In Its Prior Treatment Of Resident And Negligently Failed To Provide Nursing Home With Information That Would Have Apprised Nursing Home Of Resident's Medical Condition - "D'amario V. Ford Motor Company" Not Applicable To Prohibit Apportionment Because Both Hospital And Nursing Home Dealing With "Continuum Of Same Injury" - No Merit To Contention Because Nursing Home Being Sued For Deprivation Of Resident's Rights Hospital Could Not Be Joint Tortfeasor

Medical Malpractice - Presuit Requirements - Failure To Comply With Presuit Discovery - Trial Court Required To Explain Legal Or Factual Basis For Ruling On Sanctions

Nursing Homes - Wrongful Death - Violation Of Resident's Rights

Medical Malpractice - Evidence - No Abuse Of Discretion In Excluding Proffered Documents When Plaintiffs' Expert Testified As To Same Matter Document Would Have Illustrated

Medical Malpractice - Product Liability - Summary Judgment Improper - Conflict Between Surgeon's Operative Report And His Testimony Created Issue Of Fact - Trial Court Should Have Considered Affidavit Of Plaintiff's Expert In Opposition To Motion For Summary Judgment

Nursing Homes - Arbitration Clauses - Court Cannot Refuse To Enforce Arbitration Agreement Made By Competent Parties

Wrongful Death - Pharmacists - Action Arising Out Of Pharmacist's Services In Nursing Home - Dismissal Proper As Plaintiff Failed To List Four Elements That Florida Supreme Court Had Established That Create Duty Upon Retail Pharmacists - Trial Court Erred In Dismissing Case "With Prejudice"

Medical Malpractice - Trial Court Did Not Abuse Discretion In Denying Plaintiffs' Motion To Strike Defendant Physician's Pleadings Where Trial Court Determined Defendant's Office Staff Did Not Make Him Aware Of Presuit Notices Because They Thought Insurer Was Handling Matter - Inadequacy Of Record On Appeal Prevents Appellate Court From Considering Whether Defendant's Attorney's Closing Argument Constituted Reversible Error

Medical Malpractice - Error To Prohibit Backstriking Of Jurors - Error To Limit Number Of Treating Physician Witnesses That Testify At Trial

Medical Malpractice - Insurance Coverage - Where Policy Provided Coverage For Only One Named Physician And Her Professional Association Which Was Additional Insured, Trial Court Properly Found No Coverage For P.A. For Malpractice Claim Against Another Physician Employed By P.A. - Trial Court Erred In Denying Professional Association's Motion To Amend Pleadings To Include Claim That Insurer Estopped From Denying Coverage - Motion For Attorney's Fees For Association Properly Denied

January 2, 2004 Through March 26, 2004

Discovery - Work Product Privilege - All Materials Reasonably Expected Or Intended To Be Used At Trial, Including Documents Intended Solely For Witness Impeachment, Subject To Proper Discovery Requests And Not Protected By Work Product Privilege

Medical Malpractice - Wrongful Death Arbitration Provisions Of 2002 Medical Malpractice Act Not Limited By Wrongful Death Act

Medical Malpractice - Birth-Related Neurological Injury Compensation Plan (Nica) - Administrative Law Judge Erred In Finding Statutorily Required Notice Of Health Care Provider's Participation In Plan Insufficient - Administrative Law Judge Does Not Have Jurisdiction To Determine Any Issue Related To Notice Including Legal Question Of What Notice Is Sufficient Or The Factual Issue Of Whether Notice Given - Conflict Certified

Medical Malpractice - Financial Responsibility - Hospitals - Hospital Properly Found Liable For Physician's Failure To Comply With Financial Responsibility Statute Which Requires Physicians To Comply With One Of Financial Responsibility Options To Obtain Hospital Staff Privileges - No Error To Dismiss Plaintiff's Claim Alleging Hospital's Negligence For Failure To Ensure Physician's Compliance With Statute

Administrative Law - Board Of Medicine - Discipline - No Error For Board Of Medicine To Grant Department Of Health's Motion For Default Where Physician Did Not File Election Of Rights Form Or Otherwise Request Formal Hearing Within 21 Day Time Period - Court Obligated To Affirm Default Where Request For Hearing Untimely - Excusable Neglect Standard Improper In A Case Where Physician Made Untimely Request For Administrative Hearing

Medical Malpractice - Civil Procedure - Continuance - Trial Court Abused Discretion In Denying Plaintiff's Motion For Continuance After Plaintiff's Expert Refused To Appear At Trial

Medical Malpractice - Failure To Prosecute - Order Allowing Out Of State Attorney To Appear Pro Hoc Vice Not Record Activity So As To Present Dismissal - Question Certified

Administrative Law - Board Of Medicine - Error To Revoke License Without Affording Licensee Formal Hearing

Medical Malpractice - Set-Offs For Prior Settlements - Apportionment Of Fault Pursuant To F.S. § 786.81 Not Applicable To Cases Of Pure Vicarious Or Derivative Liability - Non-Settling Defendant Entitled To Dollar For Dollar Set-Off For Settlement Paid By Derivatively Liable Co-Defendant - Claim Against Hmo For Negligently Credentialing Physician Is One Of Derivative Liability - Hmo And Physician Cannot Be Joint Tortfeasors

Medical Malpractice - Administrative Law - Birth-Related Neurological Injury Compensation Plan (Nica) - Mere Fact Child Will Require Substantial Accommodation In Order To Translate Normal Cognitive Capabilities Into Learning Does Not, As Matter Of Law, Constitute "Mental Impairment" Within Meaning Of Nica - Competent Substantial Evidence Supported Administrative Law Judge's Finding That Compensation Under Plan Not Available To Infant Because She Was Not Permanently And Substantially "Mentally Impaired" Within Meaning Of Law

Negligent Interference With Parental Rights - Letter By Former Wife Used To Obtain Injunction Against Plaintiff Which Denied Plaintiff Legal Custody, Visitation With And Access To His Children For One Year Until He Was Successful In Obtaining Dissolution Of Injunction - Defendant Hospital Which Was Alleged To Be Vicariously Liable For Negligence Of Its Agent Not Entitled To Benefit Of Presuit Screening Requirements Where Alleged Negligence Of Agent Did Not Constitute Medical Malpractice - Mental Anguish And Emotional Distress - Impact Rule - Even If Impact Rule Precludes Plaintiff From Seeking Damages Attributable To Emotional Distress Or Mental Anguish, He Is Entitled To Proceed With Negligent Interference With Parental Rights Count To Extent It Seeks Attorney's Fees And Costs Plaintiff Required To Expend To Secure Return Of His Children

Premises Liability - Nursing Homes - Workers' Compensation Immunity - Evidence Of Contract Creating Special Employment Between Employer And Employee Must Amount To Clear Demonstration Of Deliberate And Informed Consent By Employee

Medical Malpractice - Nica - Administrative Law Judge Has No Authority To Determine Issue Of Notice In Determining Whether Injury Is Compensable Under Nica - Administrative Law Judge's Responsibility Is To Determine Whether Injury Is Birth-Related Neurological Injury And Whether Delivery Performed By Participating Physician

Medical Malpractice - Nica - Administrative Law Judge Not Allowed To Determine Statutory Notice Issue - Administrative Law Judge's Responsibility Is To Determine Whether Injury Is Birth-Related Neurological Injury And Whether Obstetrical Services Were Delivered By Covered Person In Course Of Labor, Delivery Or Resuscitation In Immediate Post-Delivery Period In Hospital - Notice Issue Is For Circuit Court To Decide

Jurisdiction - Non-Residents - Presence Of Subsidiary Corporation Within Florida Not Enough To Subject Non-Florida Corporation To Long-Arm Jurisdiction - Defendants Had Insufficient Minimum Contacts With State To Satisfy Due Process Requirements

Nursing Homes - Defense Judgment Reversed - Trial Court Abused Discretion In Allowing Defendant To Peremptorily Challenge Only African-Americans On Venire - Chapter 400 Claim Allowed Even Though Violations Did Not Proximately Cause Resident's Death - Error To Direct Verdict For Defendant On Punitive Damage Claim - Conflict Certified

Nursing Homes - Action By Decedent's Personal Representative Against Nursing Home For Wrongful Death And Chapter 400 Violations - Trial Court Departed From Essential Requirements Of Law By Allowing Nursing Home's Attorneys To Conduct Ex Parte Communications With Non-Defendant Physicians Who Treated Decedent During Her Residency At Nursing Home

Administrative Law - Agency For Health Care Administration Erred In Classifying Nursing Home Deficiency As Class Iii And Downgrading Nursing Home's License Rating From Standard To Conditional - Chapter 400 Requires Only Substantial Compliance With Resident's Care Plan - Classification Of Deficiency Dependent Upon Potential For Harm To Resident

Administrative Law - Board Of Medicine Has Discretion To Depart From Guidelines And Impose Greater Penalty In Presence Of Aggravating Circumstances

Medical Malpractice - German Plaintiff - Error To Bifurcate Action When Liability And Damage Issues Necessarily Intertwined

Medical Malpractice - Statute Of Limitations - "Unsophisticated" Plaintiff - Trial Court Erred In Granting Summary Judgment For Defendant On Statute Of Limitations As Date Statute Of Limitations Commenced Was Fact For Jury Consideration

Nursing Homes - Arbitration Provision In Agreement For Care Applicable Where Dispute Arose Out Of Admission Agreement - Fact That Complaint Seeks Recovery For Duties Imposed By Law And In Recognition Of Public Policy Does Not Thwart Contractual Right To Arbitration

Medical Malpractice - Discovery - Trial Court Improperly Ordered Plaintiffs To Answer Interrogatory Which Requested Items That Plaintiffs Might "Conceivably" Offer As Evidence At Trial

Medical Malpractice - Administrative Law Judge Erred In Finding Statutorily Required Notice Of Health Care Provider's Participation In Nica Plan Insufficient - Defendants Could Not Claim Immunity From Civil Liability Under Plan Because Of Insufficient Notice - Administrative Law Judge Does Not Have Jurisdiction To Determine Legal Significance Of Failure Of Party To Give Notice Or To Determine Any Issue Related To Notice Including Legal Question Of What Notice Is Sufficient Or Factual Basis Of Whether Notice Given - Conflict Certified

Medical Malpractice - Pre-Suit Notice - Time Limit For Filing Notice Of Intent - Suit Against Defendant Timely As All Of Plaintiff's Pleadings Filed Within Extended Times

Medical Malpractice - Trial Court Properly Concluded That Letter Sent To Defendant By Plaintiff's Former Attorney Constituted Notice Of Intent To Initiate And Thus Statute Of Limitations Expired At Time Complaint Filed

Nursing Homes - Administrative Law - Improper For Agency For Health Care Administration To Conclude Single Departure From Resident's Care Plan On Follow-Up Inspection, Regardless Of Circumstances And In Absence Of Potential For Harm, Constituted Class Iii Deficiency Warranting Conditional License - Only Substantial Compliance With Resident's Care Plan Required And Facility Found To Have Deficient Practices May Still Be Found In Substantial Compliance Based On Actual Or Potential Harm To Resident's Health Or Safety - Agency Erred In Finding That Potential For Harm Irrelevant - Agency Erred In Rejecting Administrative Law Judge's Findings Supported By Competent Substantial Evidence

October 1, 2003 Through December 31, 2003

Medical Malpractice - Appropriate To Set-Off Economic Damages Portion Of Jury Award From Economic Damage Portion Of Any Settlement From Settling Tortfeasor For Same Incident Even Though Settling Tortfeasor Not On Verdict Form - No Set-Off For Non-Economic Damages - Offer Of Judgment Invalid - Failure To Apportion Damages Between Plaintiffs

Nursing Homes - Arbitration Agreement Signed By Husband Upon His Wife's Admission To Nursing Home Unenforceable

Medical Malpractice - Limitations Of Actions - Hospital Waived Statute Of Limitations Defense As It Failed To Raise Issue Of Verification Of Experts' Opinions In Motion To Dismiss Filed Before Statute Of Limitations Expired - Issue First Raised Orally At Hearing On Hospital's Motion To Dismiss After Statute Of Limitations Had Expired - Allowing Hospital To Amend Motion To Dismiss Would Have Unfairly Prejudiced Plaintiffs

Torts - Nursing Homes - Civil Procedure - Order Setting Aside Dismissal Of Action For Failure To Prosecute Is Non-Appealable Non-Final Order

Medical Malpractice - Hospitals - Discovery - Privilege - Blank Forms Used For Testing And Evaluating Competency Of Nurses In Regard To Sedation And Analgesia, Which Were Created By Hospital Committee For Purpose Of Quality Assurance And Peer Review, Fall Within Privilege Accorded "Investigations, Proceedings And Records" Of Medical Review Committee

Medical Malpractice - Plaintiff's Expert Competent To Testify Regarding Standard Of Care Against Defendant Physician Even Though Had Different Specialty

Nursing Homes - Assisted Living Facilities - Violation Of Resident's Rights - Error To Allow Testimony That Resident Entitled To Medicaid Benefits Which Would Help Cover Cost Of Care - Record Did Not Support Conclusion That Error Harmless Or Defendant's Contention That Plaintiff Opened Door To Testimony

Medical Malpractice - Nica - Administrative Law Judge Not Allowed To Determine Statutory Notice Issue - Administrative Law Judge's Responsibility Is To Determine Whether Injury Is Birthrelated Neurological Injury And Whether Obstetrical Services Were Delivered By Covered Person In Course Of Labor, Delivery Or Resuscitation In Immediate Post-Delivery Period In Hospital - Notice Issue Is For Circuit Court To Decide - Conflict Certified

Medical Malpractice - Wrongful Death Of Passenger On Cruise Ship - Personal Jurisdiction - Territorial Sea Boundary Of Florida

Medical Malpractice - Presuit Requirements - Notice To Physician's Assistant's "Former" Employer Insufficient

Medical Malpractice - Hospitals - Apparent Agency And/Or Authority - Error To Enter Summary Judgment Determining Hospital Had No Vicarious Liability For Radiologist's Negligence

Medical Malpractice - Civil Procedure - New Trial - Plaintiff Not Authorized To File Motion For Rehearing On Denial Of Motion For New Trial And Trial Court May Not Sua Sponte Vacate Order Denying Motion For New Trial And Enter Order Granting New Trial

Nursing Homes - Arbitration - Trial Court Improperly Failed To Consider Defendant's Participation In Litigation Prior To Filing Motion To Compel Arbitration - Trial Court Erred In Compelling Arbitration Without Ruling Whether Arbitration Provision In Admission Documents Either Procedurally Or Substantively Unconscionable

Nursing Homes - Administrative Law - Failure To Provide Notice Of Intent To Assign Conditional Licensure Status To Nursing Home's Counsel Impaired Fairness Of Proceedings Or Correctness Of Action

Medical Malpractice - Substance Abuse Records Not Discoverable If Plaintiff Has Not Alleged Mental Pain And Suffering

July 1, 2003 Through September 30, 2003

Medical Malpractice - Statute Of Repose - Negligent Diagnosis Does Not Constitute "Concealment" For Purposes Of Extending Medical Malpractice Statute Of Repose From Four To Seven Years Under F.S. § 95.11(4)(B)

Nursing Homes - Wrongful Death - Violation Of Resident's Rights - Plaintiff Not Precluded From Bringing Direct Action Against Nursing Home When Court Invalidated Earlier Assignment Of His Rights Against Nursing Home To Third Party

Liable For Conceded Negligence Of Contracting Perfusionist Which Caused Injury To Child - Hospital Undertook To Provide Perfusionist's Services When It Agreed To Provide Hospital Care And Medical Treatment - Contract Created Non-Delegable Duty Which Hospital Could Not Extinguish By Subcontract

Medical Malpractice - Wrongful Death - Suicide - Error To Grant Summary Judgment When Deposition Testimony Of Plaintiff's Expert Creates Triable Issue On Standard Of Care

Medical Malpractice - No Abuse Of Discretion In Denying Non-Party Physician's Motion To Intervene Who Asserted Defendant Physician's Expert's Opinions Would Be Detrimental To Non-Party Physician's Reputation And Would Subject Him To Professional Investigation

Medical Malpractice - Extension Of Statute Of Limitations Pursuant To F.S. § 766.104(2) - 90-Day Extension Of Statute Of Limitations Is Applied To End Of Limitations Period

Nursing Homes - Arbitration Clause In Contract Unenforceable - Where Arbitration Clause Calls For Arbitration To Take Place In Foreign Jurisdiction, Florida Courts Cannot Compel Arbitration Where One Party Objects

Nursing Homes - Wrongful Death - Arbitration Clause Valid - Meeting Of Minds With Respect To Agreement To Arbitrate - Finding Contract "Boiler Plate" Contract Not Basis For Invalidating Contract - Arbitration Clause Neither Procedurally Nor Substantively Unconscionable

Medical Malpractice - Directed Verdict In Favor Of Defendant Inappropriate Sanction For Misbehavior Of Plaintiff's Trial Counsel During Course Of Litigation And At Trial - Record Did Not Support Finding That Client Herself Personally Involved In Attorney's Misconduct Or That She Was Aware Of Nature Or Extent Of Attorney's Misconduct - Question Certified

Dental Malpractice - Striking Of Expert Witness - Disqualification Of Counsel - Work Product Privilege Not Absolute - Trial Court Did Not Depart From Essential Requirements Of Law By Refusing To Disqualify Plaintiff's Counsel For Contact With Defendant's Former Expert

Medical Malpractice - Municipal Corporations - Inquiry Into Employee's Opinions Regarding Standard Of Care Called For Expert Testimony - Inquiry Of Expert's Opinions Who Would Not Testify At Trial And Who Had No First Hand Knowledge Of Facts Giving Rise To Action Prohibited As It Impermissibly Invaded Work Product Privilege

Medical Malpractice - Wrongful Death - Personal Jurisdiction - Trial Court Improperly Granted Cruise Ship Doctor's Motion To Dismiss For Lack Of Personal Jurisdiction - Personal Jurisdiction Attained When Defendant Personally Served With Process In Miami-Dade County When Suit Papers Delivered To His Attorney On Board Vessel Docked At Port Of Miami

Medical Malpractice - Hospitals - Negligence - Vicarious Liability - Plaintiff Seeking To Hold Hospital Liable For Injuries That Perfusionist's Conceded Negligence Caused Child During Open-Heart Surgery - Trial Court Properly Granted Partial Summary Judgment In Favor Of Plaintiffs On Hospital's Liability For Perfusionist's Negligence

Nursing Homes - Attorney's Fees - Motion For Attorney's Fees Pursuant To F.S. §57.105(1) Does Not Require Additional Discovery To Determine If Cause Of Action At Inception Completely Untenable And Frivolous - Trial Court Need Only Review Prejudgment Record To Determine Whether There Was Complete Absence Of Justiciable Issue Of Law Or Fact Raised By Complaint

Medical Malpractice - Improper To Allow Favorable Medical Publication Through Expert In Plaintiff's Case In Chief - Defendant's Motion For Directed Verdict On Issue Of Causation Properly Denied As Plaintiff Presented Expert Testimony That Defendant Deviated From Standard Of Care

Medical Malpractice - Presuit Screening - Dismissal - Failure To Comply With Presuit Discovery Not Fatal To Plaintiff's Claim Where Compliance Accomplished Before Statute Of Limitations Expired And Before Suit Filed

Medical Malpractice - Dismissal Proper For Failure To Comply With Presuit Requirements

Nursing Homes - Wrongful Death - Violation Of Resident's Rights - Arbitration Provision In Nursing Home Admission Contract Not Unconscionable - Admission Contract Not Contract Of Adhesion - Error To Deny Motion To Compel Arbitration And Abate Civil Action

April 1, 2003 Through June 30, 2003

Medical Malpractice - Two Issue Rule - Neuropsychologist Competent To Testify Regarding "Effect And Timing" But Not "Cause" Of Organic Brain Injury - Two Issue Rule Inapplicable As Breach Of Duty And Proximate Cause Comprise Separate Elements Of Proof Necessary For Plaintiffs To Prevail On Single Cause Of Action

Medical Malpractice - Administrative Law - Nica - Finding That Infant Not Subject To Compensation Under Plan Because Infant Not "Mentally Impaired" Within Meaning Of Plan Conflicted With Applicable Law

Medical Malpractice - Nica - Once Administrative Law Judge Determines Injury Compensable His Statutory Duties Are Discharged

Medical Malpractice - Plaintiff Not Obliged To Prove Pediatrician Would Not Have Been Negligent Or To Prove Precise Steps Pediatrician Would Have Taken To Ensure Health Of Her Patient If Radiologist's X-Ray Interpretation Had Been Positive For Hip Dysplasia - Error To Enter Directed Verdict On Ground No Evidence Radiologist's Misreading Of X-Ray Caused Failure To Timely Treat Infant With Pavlik's Harness

Medical Malpractice - Hmo's - Vicarious Liability Of Hmo For Negligent Acts Of Physician With Whom Hmo Had Contracted As Independent Contractor - Error To Enter Summary Judgment For Hmo When There Is Factual Issue About Whether Physician Acting As Apparent Agent Of Hmo

Medical Malpractice - Hospitals - Vicarious Liability For Acts Of Employee Or Agent Of Florida Board Of Regents Under F.S. § 240.215 - Notice To Patient - Summary Judgment For Defendant On Ground Of Statutory Immunity Error

Medical Malpractice - Presuit Notice Requirements - Plaintiff's Diet During Hospitalization Part Of Her Medical Treatment - Action Dismissed For Failure To Comply With Presuit Notice Requirements

Medical Malpractice - Trial Court Erred In Entering Summary Judgment For Defendant Health Maintenance Organization In Medical Malpractice Action On Ground Negligent Physician Was Not Acting As Agent Of Defendant When Record Supports Inference Of Control Sufficient To Present Jury Question On Issue Of Agency

Medical Malpractice - Nica - Appeal Dismissed For Lack Of Jurisdiction As Final Order Did Not Make Findings Concerning Amount Of Previously Incurred Expenses Which Association Was Ordered To Pay

Medical Malpractice - "Two-Issue Rule" Applies Only When Separate Theories Of Liability Exist - "Two-Issue Rule" Does Not Apply To Single Theory Of Liability With Multiple Elements

Medical Malpractice - Expert Qualifications - Pediatrician Qualified To Render Standard Of Care Opinion Against Pediatric Gastroenterologist - No Proof By Defendant That Plaintiff's Expert Not Qualified To Render Standard Of Care Opinion

Medical Malpractice - Civil Procedure - Summary Judgment Improper When Opposing Co-Defendant Has Not Had An Opportunity To Complete Discovery

Medical Malpractice - Two Issue Rule - Neuropsychologist Competent To Testify Regarding "Effect And Timing" But Not "Cause" Of Organic Brain Injury - Two Issue Rule Inapplicable As Breach Of Duty And Proximate Cause Comprise Separate Elements Of Proof Necessary For Plaintiffs To Prevail On Single Cause Of Action

Wrongful Death - Punitive Damages - Appeals - Writ Of Certiorari Not Available Remedy For Plaintiff Whose Motion To Add Claim For Punitive Damages In Nursing Home Case Denied - Plaintiff Has Adequate Remedy On Appeal - Trial Court Did Not Depart From Essential Requirements Of Law In Determining Plaintiff Had Not Made Reasonable Showing To Support Addition Of Punitive Damages Claim

January 1, 2003 Through March 31, 2003

Nursing Home - Wrongful Death - Damages Not Limited To Damages Provided For In Wrongful Death Act - Cause Of Action Pursuant To F.S. § 400.023(1) Constitutes Independent Cause Of Action

Medical Malpractice - Wrongful Death - Arbitration - Improper To Set Off Settlement During Presuit Against Arbitration Award

Medical Malpractice - Statute Of Limitations Tolled During Presuit Screening - Contribution Claim Based On Medical Malpractice Subject To Presuit Screening Requirements Of Chapter 766 - Presuit Screening Requirements Not Applicable Where Liability Of Joint Tortfeasor Already Determined

Medical Malpractice - Hmo - Vicarious Liability Claim Against Hmo Based Upon Actual And Apparent Agency Theories Not Preempted By Erisa - Hmo Does Not Have Nondelegable Duty To Provide Non-Negligent Medical Care - Whether Member Physician Is Apparent Agent Of Hmo Is Determined By Totality Of Circumstances

Medical Malpractice - Good Samaritan Act - Hospital Entitled To Directed Verdict Because No Competent Substantial Evidence Er Physician Acted With Reckless Disregard - Good Samaritan Act Did Not Apply To Crna Acting Under Er Physician's Direction Because Not Hospital Employee - Question Certified - Hospital Entitled To Directed Verdict On Causation - Judgment To Be Entered Against Anesthesia Group For Entire Damage Award

Medical Malpractice - Dismissal - Error To Dismiss Action On Ground Of Failure To Comply With Pretrial Conference Order Without Finding Conduct Willful Or Deliberate

Medical Malpractice - Jurors - Peremptory Challenge - Gender Discrimination - Plaintiffs Who Objected To Peremptory Challenges Of Three Female Prospective Jurors Entitled To New Trial When Trial Court Did Not Require Defense To Articulate Gender Neutral Reasons For Challenges

Medical Malpractice - Wrongful Death - Personal Jurisdiction - Trial Court Improperly Dismissed Action Against Cruise Ship Doctor Where Ship Inside Florida's Territorial Waters When Alleged Incident Occurred

Medical Malpractice - Nica - Once Administrative Law Judge Determines Injury Compensable His Statutory Duties Are Discharged

Medical Malpractice - Error To Allow Defendants To Use Acog Bulletin To Bolster Testimony Of Defendant And Experts - Error To Permit Defendant To Testify He Was Recognized As "Top Doctor" With "Good Reputation" In National Survey - New Trial Ordered

Nursing Homes - Defendant Allowed To Conduct Discovery Into Issue Of Plaintiff's Use Of Agency For Health Care Administration Agency Surveys - Conflict Certified

Nursing Homes - Wrongful Death - Management Agreement Between Owner/Licensee And Management Company Of Nursing Home Does Not Insulate Licensee From Liability For Management Company's Negligence Resulting In Punitive Damage Award

Medical Malpractice - Nica - Right To Nica Benefits Established On Date Of Child's Birth And Injuries Sustained At Birth - Retroactive Application Of Statute Not Permitted To Impair Vested Rights Even When Legislature Expressly States That Statute Had Retroactive Application

Medical Malpractice - Verdict Finding No Liability On Part Of Physician Against Manifest Weight Of Evidence - New Trial Proper

Medical Malpractice - Product Liability - Error To Award Fees And Costs To Special Master Without Full Evidentiary Hearing

Excluding Expert Testimony In Medical Malpractice Litigation

October 1, 2002 Through December 31, 2002

Medical Malpractice - Tolling - 90-Day Extension Of Statute Of Limitations Under F.S. § 766.104(2) Is Added To End Of Statute Of Limitations After Consideration Of All Applicable Tollings And Extensions

Nursing Home - Wrongful Death - Compliance With Chapter 766 Presuit Requirements Not Necessary When Action Alleges Only Violation Of Resident's Rights Under F.S. § 400.022

Medical Malpractice - Insurance - Misrepresentation On Application - Defendant Insurer's Motion For Directed Verdict In Action On Medical Malpractice Policy Should Be Granted When Record Demonstrates Insured Falsely Represented He Had No Previous Malpractice Claims Against Him

Medical Malpractice - Jurors - Abuse Of Discretion To Refuse To Excuse For Cause Juror Who Candidly Admitted That He Owed His Life To Plastic Surgeon Because Plaintiff Would Be Starting Out With Half Strike Against Him

Contracts - Arbitration - Nursing Home - When Plaintiff Admitted As Resident Of Nursing Home After Signing Admission Contract Containing Arbitration Clause, Admission Contract Binding Even Though Not Signed By Nursing Home - Contract Binding Despite Fact That One Party Did Not Sign Contract When Both Parties Have Performed Under Contract - Error To Deny Defendant Nursing Home's Motion To Compel Arbitration Of Claim Alleging Defendant Did Not Properly Care For Plaintiff When He Was Resident At Nursing Home

Medical Malpractice - Laparotomy Pad Left In Patient After Appendectomy - Physician Not Entitled To Set-Off For Amount Plaintiff Received From Hospital In Pretrial Settlement When Hospital Not Included On Verdict Form - Question Certified

Medical Malpractice - Certiorari - Work Product Privilege - Improper To Order Defendant To Produce Depositions Of Plaintiff's Expert

Administrative Law - Ahca - Final Order Reversed As Validity Of Agency's Action Depended On Disputed Facts And No Hearing Held

Medical Malpractice - Discovery - Production Of Defendant Physician's Medical Records Pertaining To Injuries Sustained In Fall After Defendant's Alleged Medical Negligence Which Resulted In Disabling Injury That Caused Defendant To Stop Performing Surgical Procedures Improper

Wrongful Death - Nursing Homes - Medical Review Committee Records - Order Allowing Discovery Of Quality Assurance Information Violated Confidentiality Of Peer Review Process

Medical Malpractice - Certiorari - Statute Of Limitations - Plaintiff Provided Verified Written Medical Expert Opinion - Defects In Affidavits Primarily Technical Rather Than Substantive

Wrongful Death - Discovery - Private Employer Not Subject To Public Records Act Has No Standing To Challenge Discovery Request Based Exclusively Upon Privacy Interest Of Non-Party Employees In Their Personnel Files

Wrongful Death - Nursing Homes - Discovery - Incident Reports Filed In Compliance With F.S. §400.147(4) Discoverable Upon Specific Showing Of Need - Records From Quality Assurance/Risk Management Meetings Or Communication Regarding Them Not Discoverable Unless In Camera Inspection Held To Determine Whether Documents Discoverable

Medical Malpractice - Nica Immunity - Physician Not Entitled To Nica Immunity Because Not Employee Of Obstetrics Group That Provided Nica Notice To Patient - Physician Required To Provide Separate Nica Notice Even Though Treated Group's Patients Like An Employee - Notice By Group Sufficient For Group And Group Employee Physicians Even Though Employee Physicians Not Identified By Name In Notice

Torts - Comparative Negligence - Action Against Pharmacy For Dispensing Incorrect Medicine - 45% Comparative Negligence On Part Of Mother For Ignoring Data Sheet Provided By Pharmacist When Examination Of Data Sheet Would Have Informed Her Prescription Not What Pediatrician Ordered Proper

July 1, 2002 Through September 30, 2002

Medical Malpractice - Bankruptcy Of Insurer - Stay Of Proceedings Mandatory As To All Parties To Allow Figa Oportunitiy To Investigate Claim

Medical Malpractice –Administrative Law - Board Of Medicine May Not Reject Alj’s Finding That Physician Met Standard Of Care As It Was Supported By Substantial Evidence - Board Of Medicine Not Permitted To Modify Alj’s Findings Based Upon Public Policy Considerations

Medical Malpractice –Wrongful Death - Statute Of Repose -Summary
Judgment Proper In Action Filed More Than Four Years After Misdiagnosis - "Concealment" As Used In F.S. § 95.11(4)(B) Does Not Encompass Mere Negligent Diagnosis

Medical Malpractice –Jury Instructions – Concurring Cause Instruction Must Be Given Where Expert Testimony Presented Combination Of Causes Acting Together To Cause Infant’s Injury –Aggravation Of Pre-Existing Disease Instruction Should Be Given Where Testimony Indicated Injury Could Have Been Caused By Infant Being Crowded In Uterus "And" Defendant’s Actions In Causing Additional Damage To Infant

Medical Malpractice – Offer Of Settlement - Error To Award Attorney’s Fees And Costs To Prevailing Defendants Under Offer Of Judgment Statute Where Proposal By Defendants Failed To Meet Mandatory Requirements That Proposal State Total Amount Of Proposal And All Monetary Terms

Ahca Proceedings - When Board Of Medicine Rejects Administrative Law Judge’s Findings It Must Conduct Review Of Complete Record And State With Particularity Its Reasons By Citing To Record To Justify Action

Medical Malpractice - Trial Court Erred In Permitting Experts On Direct Examination To Bolster Testimony By Way Of Treatises - Defendant Doctor Cannot Offer Testimony That He Is Listed As "Top Doctor" In His Field

Medical Malpractice – Wrongful Death - Misdiagnosis - Limitation Of Actions –Allegation In Complaint Of Specific Date Medical Malpractice Occurred Insufficient To Allow Court To Determine Time Incident Giving Rise To Complaint Discovered Or Should Have Been Discovered With Exercise Of Due Diligence - Statute Of Limitations On Misdiagnosis
Claim Does Not Begin To Run Until Decedent Correctly Diagnosed

Medical Malpractice - Appeals - Judgment For Defendant Affirmed In Absence Of Complete Trial Transcript

Nursing Home - Violation Of Resident’s Rights - Discovery Regarding Confidential Information About Employees Of Nursing Home

Medical Malpractice - Abuse Of Discretion To Prevent Plaintiffs From
Cross Examining Defendant Regarding Failure Of Medical Examination, Failure Of Medical School Course, Repeated Failure Of Board Certification Examination And Completion Of Medical School In 7-1/2 Years - New Trial Required

Medical Malpractice – Informed Consent To Surgery - Consent For Surgery From Impaired Patient - Expert Testimony - Exclusion Of Opinion

Health Maintenance Organizations – Dissmissal Of Complaint For Plaintiff’s Failure To Comply With Presuit Improper - Trial Court Erred In Determining Claim Dealt With Medical Malpractice –Conclusory Allegation In Complaint That Procedure For Which Hmo Withdrew Authorization Was Medically Necessary Not Allegation That Hmo Rendered Medical Care To Plaintiff

Medical Malpractice - Arbitration – Court Ordered Non-Binding Arbitration Pursuant To F.S. § 44.103 - Court Must Send Parties And Arbiters Written Notice Of Procedures Established By Chief Judge To Be Followed - Trial Court Not Required To Enter Judgment In Favor Of Defendants Based Upon Failure Of Plaintiffs To Request Trial De Novo Within Twenty Days After Receipt Of Written Notice Of Arbitration Order Due To Number Of Defects In Proceeding Leading To Entry Of Judgment

Civil Procedure - Error To Grant Motion To Vacate Dismissal Where
Pleading Not Sworn And No Sworn Testimony Introduced To Establish Factual Basis For Alleged Excusable Neglect

Medical Malpractice - Petition For Certiorari Review Of Order Denying Emergency Motion For Stay And Order Which Severed One Of Defendants From Malpractice Action Moot As Both Orders Had Been Quashed

Medical Malpractice -Physician’s Liability Carrier Found To Be
Insolvent - Florida Insurance Guaranty Act - Improper To Stay Action Only As To Defendant And Not As To Entire Proceeding

Medical Malpractice - Statute Of Limitations - Constructive Notice Of Injury -Plaintiff’s Constructive Notice Of Contents Of Medical Records Constituted Factual Issue Precluding Summary Judgment

Torts - Jurisdiction - Florida Court Has Personal Jurisdiction Over Cruise Ship Physician Who Renders Care To Patient In Florida Waters While Docked At Port Of Miami

Administrative Law - AHCA– Hospital Violated Statute Requiring Incident Causing Brain Damage To Be Reported Within 15 Days Involving Patient Who Became Comatose, Cyanotic And Unresponsive Even Though She Returned To Neurological Baseline After Injury

Medical Malpractice - No Clear Inconsistency Between Expert’s Trial And Deposition Testimony - Jury Instruction On Aggravation Of Pre-Existing Condition Proper Even Though Not Pled - Not Preserved For Appellate Review Since Defense Counsel Did Not Object To Instruction On That Ground - Improper To Cross-Examine Expert Cardiologist On Disqualification As Expert In Emergency Room Medicine - Interest On Judgment Runs From Date Of Judgment, Not Date Of Verdict

Medical Malpractice - Refusing To Permit Plaintiff’s Expert To Testify Regarding Hospital Credentialing Procedures And To Give Jury Instructions Regarding Hospital Procedures For Selecting Staff Members Harmless Error

Nursing Homes - Violation Of Resident’s Rights - Single Fall In Nursing Home Can Constitute Violation Under Chapter 400

Medical Malpractice –Discovery - Trial Court Improperly Compelled Defendant To Produce Documents That Were Irrelevant, Immaterial And Not Calculated To Lead To Discovery Of Admissible Evidence

Torts - Discovery – Defendant Hospital Not Required To Produce Photographs Of Male Psychiatric Patients Present In Psychiatric Ward During Time Plaintiff Allegedly Assaulted

Medical Malpractice –New Trial - Error To Permit Physician’s Counsel To Question Plaintiff’s Expert As To Whether He Had Ever Been Sued

Premises Liability – Summary Judgment For Nursing Home Improper When Plaintiff Visitor Alleged She Slipped And Fell On Grape In Main Area Of Facility

Medical Malpractice - Wrongful Death – Venue Proper In Broward County Where Decedent Ingested Drug Even Though Drug Negligently Prescribed In Duval County

Nursing Homes - Discovery –Nursing Home Employer Does Not Have Standing To Challenge Disclosure Of Non-Party Personnel Records Pursuant To Court-Ordered Discovery By Asserting Information Private - Nursing Home Does Have Standing To Oppose Production Of Personnel Information Contained In Employee Files On Ground Such Information Not Relevant To Pending Litigation - Trial Court Should Conduct In Camera Inspection Of Records To Balance Privacy Right Versus Right Of Disclosure

Medical Malpractice - Sovereign Immunity – Question Of Fact Whether Physicians Agents Of Hospital District

Medical Malpractice - Sovereign Immunity –Contract Between Hiring Agency And Physician Ambiguous - Whether Physician Agent Of Hospital Dependant Upon Hospital’s "Control" Over Doctor’s Actions

ACOG Summaries

Perinatal Care At The Threshold Of Viability

Obstetric Management Of Patients With Spinal Cord Injuries

April 1, 2002 Through June 30, 2002

Medical Malpractice – Birth Related Neurological Injury Compensation Plan (Nica) - According To Plain Meaning Of Nica Oxygen Deprivation Or Mechanical Injury To Brain Must Take Place During Labor Or Delivery Or Immediately Afterward In Order To Be Compensable By Plan – Injury To Infant In This Case Not Birth-Related Because Initial Injury To Infant Traumatic Application Of Vacuum Extractor

Medical Malpractice - Physician-Patient Privilege - Defendant Clinic May Speak To Non-Party Treating Physician Who Was Employed By Clinic At Time Of Alleged Negligent Treatment - Statutory Physician-Patient Privilege Did Not Prevent Communications Between Defendant Clinic, And Present And Former Physician Employees Who Are Not Allegedly Negligent

Medical Malpractice –Releases - Failure To Reserve Rights Against Subsequent Tortfeasor Physician Upon Settlement With Initial Tortfeasor Physician Bars Further Pursuit Of Claim Against Subsequent Physician

Medical Malpractice – Statute Of Limitations - Serving Notice Of Intent To Initiate Medical Malpractice Litigation To Medical Provider Tolls Statute Of Limitations 90 Days For "All Potential Defendants"

Medical Malpractice - Attorney’s Fees Awarded Pursuant To F.S. § 768.79 - Proposal For Settlement Timely Served And Therefore Enforceable By
Plaintiff - Contingency Multiplier Improperly Applied Because Plaintiff Failed To Show Inability To Obtain Competent Counsel In Relevant Market And Inability To Mitigate Risk Of Non-Payment

Medical Malpractice – Informed Consent To Surgery - Consent For Surgery From Impaired Patient - Expert Testimony - Exclusion Of Opinion

Medical Malpractice - Attorney’s Fees - Defendants’ Proposal For Settlement Not Enforceable Because It Did Not Comply With F.R.C.P. 1.442

Medical Malpractice – Wrongful Death - Proposals For Settlement - Fees Awarded Defendant In Wrongful Death Suit Based On Proposal For Settlement Not Recoverable From Settlement Proceeds Paid By Other Defendant -Decedent’s Estate In Wrongful Death Suit Is Single Plaintiff And Defendant’s Proposal For Settlement Need Not Apportion Offer Between Estate And Survivors – Closing Argument Not Fundamental Error If Fairness Of Trial Not Affected

Thompson vs. Hodson

Medical Malpractice - NICA - Administrative Law Judge Does Not Have Authority Over Plaintiff's Election Of Remedies - Defendant's NICA Immunity Can Not Be Destroyed By Actions Of Another NICA Participant

Medical Malpractice - Nica –Administrative Law Judge Does Not Have Authority Over Plaintiff’s Election Of Remedies - Defendant’s Nica Immunity Can Not Be Destroyed By Actions Of Another Nica Participant Gugelmin vs. Division of Administrative Hearings, Florida Birth Related Neurological Injury Compensation Association, Medical Malpractice –Coverage - Prejudgment Interest Under F.S. § 766.209 - Trial Court Erred In Finding N