Case Law Update IN THIS ISSUE WICKER, SMITH, O HARA, MCCOY & FORD, P.A.

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1 WICKER, SMITH, O HARA, MCCOY & FORD, P.A. NOVEMBER / DECEMBER 2010 IN THIS ISSUE Pursuant to , Recovery for Non-Economic Damages Is a Per Claimant Per Incident Award Not Per Defendant. Affirmative Defenses That May Be Legally Insufficient Should Survive Summary Judgment. Section Imposes Pre-suit Requirements on a Claim for Medical Negligence or Malpractice. A Nursing Home Arbitration Agreement Will Contractually Bind Heirs Even in a Subsequent Wrongful Death Action. Admitting Evidence That No Prior Falls Occurred in 70 Years Was Not an Abuse of the Court s Discretion.

2 Deno v. Lifemark Hosp. of Fla., 35 Fla. L. Weekly D2271 (Fla. 3d DCA Oct. 13, 2010) PURSUANT TO , RECOVERY FOR NON- ECONOMIC DAMAGES IS A PER CLAIMANT PER INCIDENT AWARD NOT PER DEFENDANT This case involved an appeal of an arbitration award in a medical negligence case. The issue considered on appeal was how to interpret section , Florida Statutes (2008), which provides for voluntary binding arbitration of medical negligence claims. The Third District Court of Appeals concluded that the arbitration panel correctly interpreted the statute. Following a notice of intent to file suit for alleged medical malpractice by Lifemark Hospital of Florida, Inc. (doing business as Palmetto General Hospital), Doctor Abdul-Rahman Jaraki, and Jaraki Medical Care, P.A., in the performance of a heart procedure on William S. Deno ( the Estate ) that resulted in his death, each defendant made a separate offer to arbitrate under section The Estate accepted and the two arbitration proceedings were consolidated. In a proceeding under section , the liability of the defendants is admitted. The only issue is damages. Those are set by a panel of three arbitrators, one selected by the claimant, one selected by the defendant, and an administrative law judge designated by the Division of Administrative Hearings who serves as the chief arbitrator (4). Defendants who submit to arbitration under section are jointly and severally liable for all damages assessed (7)(h). The question presented was how to calculate the statutory limitation on non-economic damages. The statute provides that [n]on-economic damages shall be limited to a maximum of $250,000 per incident (7)(b). This has been interpreted to mean $250,000 per claimant per incident. St. Mary's Hosp., Inc. v. Phillipe, 769 So. 2d 961, 972 (Fla. 2000). The arbitration panel awarded $250,000 in non-economic damages to three claimants, Elizabeth D. Deno, Demi Deno, and William Deno, for a total award of non-economic damages of $750,000. The Estate argued that the statute allows a $250,000 non-economic damage award per claimant per defendant. In this case there were two defendants: Lifemark and Dr. Jaraki. Accordingly, there should be a $750,000 non-economic damage award against Lifemark and a separate $750,000 noneconomic damage award against Dr. Jaraki, for a total of $1.5 million. The arbitration panel rejected the Estate's per defendant argument. The Third District Court of Appeal agreed with the arbitration panel, noting that the text of the statute says nothing of a per defendant calculation. As stated by the Court, under St. Mary's, the idea is that each claimant may recover up to $250,000 of non-economic damages per malpractice incident. Under the Estate's position, the amount of economic damages would fluctuate, depending on the number of defendants in the case. The Estate s argument is inconsistent with the idea of a uniform cap. The arbitration panel's ruling is consistent with the text of the statute and the statutory scheme. Page 2 of 6

3 AFFIRMATIVE DEFENSES THAT MAY BE LEGALLY INSUFFICIENT SHOULD SURVIVE SUMMARY JUDGMENT The trial court sua sponte struck all of the Defendant s affirmative defenses without finding them redundant, immaterial, impertinent, scandalous or a sham and then granted Plaintiff s Motion for Summary Judgment. The trial court deemed the defenses to be lacking in specificity and support. Neither of these grounds warrants the sua sponte dismissal of Defendant s affirmative defenses. Indian River Mem l Hosp., Inc. v. Browne, Inc., 35 Fla. L. Weekly D2166 (Fla. 4th DCA Sept. 29, 2010) Sanchez v. Lasalle Bank Nat l Ass n, Etc., 35 Fla. L. Weekly D2106 (Fla. 3rd DCA Sept. 22, 2010) The Florida Rules of Civil Procedure authorize a trial court sua sponte to strike a pleading which is redundant, immaterial, impertinent or scandalous, and, upon a party's motion, a pleading which is a sham. Fla. R. Civ. P (f), A trial court, however, should not strike a pleading sua sponte on the ground that it is legally insufficient, or because the party subsequently may not be able to prove his or her allegations. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977). Accordingly, the Third DCA reversed the final summary judgment and remanded the cause for further proceedings. SECTION IMPOSES PRE-SUIT REQUIREMENTS ON A CLAIM FOR MEDICAL NEGLIGENCE OR MALPRACTICE Thomas Browne, aged 76, was admitted to the emergency room at Indian River Hospital. While there, he fell off a stretcher and suffered head injuries that caused his death. Browne's estate sued the hospital, alleging that Browne was admitted to the emergency room in a disoriented and confused state and the hospital improperly supervised him and left the bed's guardrail unsecured. The Nineteenth Judicial Circuit Court of Indian River County denied the hospital's motion to dismiss estate's negligence claim for failure to comply with the statutory pre-suit notice requirements of Chapter 766 Fla. Stat. (2009) for medical negligence claims. Section imposes pre-suit requirements on a claim for medical negligence or malpractice. Such a claim is one arising out of the rendering of, or the failure to render, medical care or services. See, Burke v. Snyder, 899 So.2d 336, 338 (Fla. 4th DCA 2005). Claims of simple negligence or intentional torts which do not involve the provision of medical care or services do not require compliance with Chapter 766 pre-suit requirements. See, Lake Shore Hosp. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000) (court held that patient's negligence claim arising from a slip and fall between her hospital bed and bathroom was not a cause of action for medical negligence subject to pre-suit requirements). It was error to rule that the medical malpractice pre-suit requirements of Chapter 766 Fla. Stat. did not apply to a negligence claim against a hospital arising out of this incident where complaint asserted claims relating to hospital's standard of care in evaluating the condition of patients admitted to the emergency room and the adequacy of the hospital's procedures for managing and supervising patients admitted to emergency rooms. See also, South Miami Hospital v. Perez, 38 So. 3d 809 (Fla. 3d DCA 2010) for a factually similar case. Remanded to the circuit court for further proceedings. Page 3 of 6

4 A NURSING HOME ARBITRATION AGREEMENT WILL CONTRACTUALLY BIND HEIRS EVEN IN A SUBSEQUENT WRONGFUL DEATH ACTION The Estate of a deceased nursing home resident brought a wrongful death action against the owner and operators of a nursing home. The Circuit Court of Lake County granted the owner and operators' motion to compel arbitration pursuant to an arbitration provision in the patient's admission agreement. The Estate appealed. The Fifth DCA affirmed the lower court and certified a question of great public importance to the Florida Supreme Court. Laizure v. Avante at Leesburg, Inc., 35 Fla. L. Weekly D2180 (Fla. 5th DCA Oct. 1, 2010) Harry Stewart died several days after he was admitted to Avante at Leesburg Outpatient Rehab, a skilled nursing facility. The Estate sued Avante alleging wrongful death and the deprivation of Mr. Stewart's statutorily mandated nursing home resident's rights. Avante filed a motion to compel arbitration predicated on the arbitration agreement that Mr. Stewart signed on admission. The Estate opposed arbitration, contending that the agreement was procedurally and substantively unconscionable, and that the wrongful death claim was not an arbitrable issue. Following a hearing, the trial court granted Avante's motion and ordered arbitration. The trial court then abated the action pending resolution of this appeal. In considering whether a dispute is subject to arbitration, courts consider three primary issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. US Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The first two inquiries are implicated in this appeal. The Estate contended that the arbitration agreement can not encompass a wrongful death claim because that claim did not belong to Mr. Stewart, but rather was an independent claim belonging to the Estate and Mr. Stewart's statutory survivors. As a result, the Estate asserted that Mr. Stewart lacked the authority to bind the Estate and his heirs to an agreement to arbitrate that they did not sign. The issue is thus one of contract formation whether a valid agreement to arbitrate exists. Surprisingly, no prior Florida decision directly addressed the issue of whether a nursing home arbitration agreement executed by a patient is binding on his estate and survivors in the event a wrongful death claim is subsequently pursued. In this case, the arbitration agreement stated that it shall be binding upon, and shall include any claims brought by or against the Parties' representatives, agent, heirs. According to the 5th DCA, this language was more than sufficient to bind Mr. Stewart's heirs and representatives. The Estate further contended that the very nature of a wrongful death cause of action placed it outside the terms of the arbitration agreement because it is an independent cause of action based on the Florida Wrongful Death Act, sections , Florida Statutes (2009). Continued on page 5 Page 4 of 6

5 Continued from page 4 Here, the agreement containing the arbitration clause obligated Avante to provide appropriate care to the decedent, and the Complaint alleges that Avante failed to provide appropriate care. There is a strong nexus between the dispute giving rise to the lawsuit and the contract containing the arbitration clause, which mandates arbitration for any claim based on common law or statutory negligence, gross negligence, malpractice or a claim based on any departure from accepted standards of medical or nursing care.this shall expressly include, without limitation, claims based on Chapter 400, Florida Statutes. This wrongful death claim was based on Avante's alleged negligence, specifically the failure to render care, treatment and services in a reasonably prudent manner and in accordance with accepted standards of care and practice in the nursing home facilities industry. Since the wrongful death claim is related to the care provided to Mr. Stewart, it falls squarely within the language of the arbitration agreement. The concern raised in this case will not finally be resolved until the Florida Supreme Court addresses the issue. As such, the following question was certified to the Florida Supreme Court as one of great public importance: Does The Execution Of A Nursing Home Arbitration Agreement By A Party With The Capacity To Contract, Bind The Patient's Estate And Statutory Heirs In A Subsequent Wrongful Death Action Arising From An Alleged Tort Within The Scope Of An Otherwise Valid Arbitration Agreement. ADMITTING EVIDENCE THAT NO PRIOR FALLS OCCURRED IN 70 YEARS WAS NOT AN ABUSE OF THE COURT S DISCRETION While leaving a hotel-restaurant in Miami, the Plaintiff fell on a rain soaked flight of terrazzo steps. She sued the operators of the hotel-restaurant. The jury returned a verdict for the Defendants, which she appealed. The Plaintiff claimed that the trial court erred in permitting evidence that there had been no prior falls since the building was constructed and opened as the Waldorf Hotel in The 3d DCA held that the trial court did not abuse its discretion by admitting evidence that there had been no prior falls since the building opened more than 70 years earlier. Lewis v. Sun Time Corp., 35 Fla. L. Weekly D2316 (Fla. 3rd DCA Oct. 20, 2010) The Court stated that admitting the no-accident history of the location in a premises liability case into evidence for a variety of purposes is a well recognized strategy, including the central one of showing that the area was not in fact dangerous or defective. See, Springtree Props., Inc. v. Hammond, 692 So.2d 164, 165 (Fla.1997) (considering absence of similar accidents in determining whether fact issues remained); Cent. Theatres v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944) (evidence that for several years there had been no accident from shooting at location admissible). The Court concluded reversal was not justified and that the trial court did not abuse its discretion: (1) in the admission of evidence in general; (2) in the admission of testimony concerning previous accidents or their absence (i.e., prior safety history); and (3) in determining whether to permit the introduction of that testimony, as to the issue of whether the prior circumstances are more similar than they are dissimilar. There were variations in the steps and their usage, but the dangerous character (or lack thereof) remained the same for the seventy plus years they were in existence. The Court held this was proper for the jury to consider. Page 5 of 6

6 WICKER, SMITH, O HARA, MCCOY & FORD, P.A. Founded in 1952, Wicker, Smith, O'Hara, McCoy & Ford, P.A., is a full-service trial firm deeply experienced in handling significant and complex litigation for a broad variety of clients, ranging from multinational corporations to individuals. Wicker Smith services its clients through a network of seven locations throughout the state of Florida in Miami, Fort Lauderdale, West Palm Beach, Orlando, Tampa, Naples and Jacksonville. Wicker Smith is a member of the USLAW NETWORK, an alliance of more than 60 AV-rated, independent law firms and over 4,000 attorneys across the U.S. and Mexico who are part of the Network by invitation only. Wicker Smith Office Locations: Miami: 2900 S.W. 28 th Terrace, 5 th Floor Miami, Florida / Fort Lauderdale: SunTrust Center 515 E. Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida / West Palm Beach: Northbridge Centre 515 North Flagler Drive, Suite 1600 West Palm Beach, Florida / Orlando: Bank of America Center 390 North Orange Avenue, Suite 1000 Orlando, Florida / Tampa: 100 North Tampa Street, Suite 1800 Tampa, Florida / Naples: Mercato 9128 Strada Place, Suite Naples, FL / Jacksonville: 50 North Laura Street, Suite 2700 Jacksonville, FL / The content of this publication does not constitute legal advice. It is intended to provide a summary of recent case law. Readers should consult with counsel before acting on the information. Please feel free to share this publication with your colleagues. To be added to the Wicker Smith mailing list, please visit our website at Page 6 of 6