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The 2d DCA recently held in Reed v. Schutz Litigation LLC, 38 Fla. L. Weekly D1570b (Fla. 2d DCA July 24, 2013), that a defendant in a legal malpractice action was not entitled to summary judgment when there was a genuine issue of material fact as to whether the plaintiff could have prevailed in the underlying action had it not been for the alleged legal malpractice.

Plaintiff, Ms. Reed, claimed that she was injured as a result of negligent supervision by a physical therapist while she was admitted to the hospital after experiencing a stroke. She retained Mr. Schutz to file a medical malpractice lawsuit against the hospital on her behalf. However, the medical malpractice action was not timely filed because Schutz erroneously advised Reed that the statute of limitations for medical malpractice was four years instead of two.

Reed subsequently sued Schutz for legal malpractice. Schutz moved for summary judgment on the basis that Reed did not have sufficient evidence to establish that she would have won the underlying medical malpractice action but for the alleged negligence of her attorney. The trial court granted Schutz's motion.

The 2d DCA reversed the summary judgment and noted that a plaintiff is required to establish three elements in order to prevail in a legal malpractice claim: (1) employment of the defendant attorney; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence was the proximate cause of loss to the plaintiff.

Although Schutz argued that Reed had failed to show that she would have prevailed in the underlying action, the 2d DCA held that a plaintiff in a legal malpractice proceeding is not required to present evidence of a causal relationship in opposition to summary judgment unless the record affirmatively shows an absence of the required causal relationship. The 2d DCA concluded that there was evidence of a causal relationship in Reed's case because there were medical records and deposition testimony indicating that Reed had sustained injuries as a result of the negligent supervision at the hospital.

This summary was prepared by Amy Baker of our firm.

Amy Baker



38 Fla. L. Weekly D1570b


Torts -- Legal malpractice -- Error to enter summary judgment in favor of plaintiff's former attorney where genuine issue of material fact exists regarding whether attorney's alleged misadvice about statute of limitations applicable to plaintiff's medical malpractice case was the proximate cause of loss to the plaintiff

VALEERA REED, Appellant, v. SCHUTZ LITIGATION LLC; SCHUTZ & SCHUTZ, P.A. d/b/a SCHUTZ LITIGATION LLC; LAW GROUP; and DONALD J. SCHUTZ, Appellees. 2nd District. Case No. 2D12-4516. Opinion filed July 24, 2013. Appeal from the Circuit Court for Pinellas County; Pamela A.M. Campbell, Judge. Counsel: Michael J. Brevda of Domnick & Shevin, PL, Palm Beach Gardens, for Appellant. Kenneth A. Hall of Goodis Thompson Miller, P.A., St. Petersburg, for Appellees.

(CRENSHAW, Judge.) In this legal malpractice action, Valeera Reed appeals the final summary judgment entered in favor of her former attorney, Donald J. Schutz, and Schutz Litigation, LLC (collectively, Schutz). Because there are genuine issues of material fact, we reverse.

Factual Background

This case began when Ms. Reed was admitted to the hospital following a stroke. She was placed under supervision, and a physical therapist was required to accompany Ms. Reed to the restroom because Ms. Reed was at a high risk of falling. On one trip to the restroom, however, Ms. Reed was not properly supervised by her physical therapist, and she fell off the toilet, striking her head and back. Soon thereafter, Ms. Reed complained of injuries, including a severe headache. Following her fall, Ms. Reed retained Mr. Schutz as legal counsel to represent her in a medical malpractice claim against the hospital arising from the physical therapist's failure to supervise her in contravention of the hospital's own policies and procedures.

Eventually, Mr. Schutz withdrew as counsel for Ms. Reed's medical malpractice claim against the hospital. Ms. Reed maintains that Mr. Schutz consistently told her that her claim against the hospital was subject to a four-year statute of limitations. In reality, Ms. Reed's claim was subject to a two-year statute of limitations, and she was barred from bringing suit because her medical malpractice claim was not timely brought. As a result, Ms. Reed filed suit against Schutz1 for legal malpractice, asserting that her medical malpractice claim against the hospital was barred due to Mr. Schutz's misinformation about the applicable statute of limitations. Ultimately, the trial court entered final summary judgment in favor of Schutz, and this timely appeal followed.


"Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law." MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So. 2d 30, 33 (Fla. 2d DCA 2007) (citing Goeree v. Mirtsou, 923 So. 2d 610 (Fla. 2d DCA 2006)); see Fla. R. Civ. P. 1.510. Summary judgment should not be granted if there is "even the slightest doubt" as to whether any genuine issue of material fact exists. Rogers v. Ruiz, 594 So. 2d 756, 766 (Fla. 2d DCA 1991). As one court previously stated,

[i]f material facts are conflicting, i.e., if facts permit different reasonable inferences to be drawn, or if facts even tend to prove material issues, then summary judgment may not be granted. Summary judgment is proper only where "the record affirmatively showed that the plaintiff[ ] could not possibly prove [her] case, and not because [she] had simply failed to come forward with evidence doing so."

Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. 5th DCA 2012) (citation omitted) (quoting Webster v. Martin Mem'l Med. Ctr., Inc., 57 So. 3d 896, 897-98 (Fla. 4th DCA 2011)).

Applying this standard in Ms. Reed's legal malpractice case, in order for Schutz's motion for summary judgment to be granted, Schutz had the burden of proving that Ms. Reed could not possibly prove: (1) Mr. Schutz had been employed as her attorney, (2) Mr. Schutz neglected a reasonable duty, or (3) Mr. Schutz's negligence was the proximate cause of loss to Ms. Reed. See Tarleton v. Arnstein & Lehr, 719 So. 2d 325, 328 (Fla. 4th DCA 1998). Schutz focuses on the third element of Ms. Reed's legal malpractice case and argues that summary judgment was properly granted because Ms. Reed failed to provide sufficient summary judgment evidence of causation in her underlying medical malpractice case.2 See id. ("To prevail on the [legal] malpractice claim, the client has to prove that she would have prevailed on the underlying action but for the attorney's negligence.").

Based on the summary judgment evidence, however, there is a genuine issue of material fact regarding causation in the underlying medical malpractice case, and summary judgment should not have been granted. In support of her case, Ms. Reed provided deposition testimony from a nurse and an occupational therapist who supervises and trains physical therapists.3 The nurse characterized Ms. Reed's fall as a "significant fall" based upon the fact that Ms. Reed hit her head, landed on a concrete floor, and struck "some type of an existing apparatus." Additionally, Ms. Reed's medical records and deposition testimony provide some support for the assertion that Ms. Reed's alleged injuries are causally related to the fall she suffered as a result of the physical therapist's failure to properly supervise her. Notably, in a case such as this where the record does not affirmatively show an absence of the required causal relationship, "the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship," as Ms. Reed has done. Visingardi v. Tirone, 193 So. 2d 601, 604 (Fla. 1966).


For the foregoing reasons, we conclude that the trial court should not have granted Schutz's motion for summary judgment. Accordingly, we reverse.

Reversed and remanded. (NORTHCUTT and VILLANTI, JJ., Concur.)

1. Originally, Ms. Reed also filed suit against another attorney who is not a party to this appellate proceeding.

2. Schutz does not argue that the summary judgment evidence affirmatively disproves causation in the underlying medical malpractice case.

3. Both of these medical professionals agreed that the hospital's physical therapist deviated from the standard of care by failing to supervise Ms. Reed in the restroom. The hospital's physical therapist also admitted to violating hospital policies and procedures by failing to supervise Ms. Reed in the restroom.

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