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Florida Decision Weekly Wrap-up 03/05

March 8, 2010

Florida Decision Weekly Wrap-up 03/05

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION v. MICHAEL, Case No. 2D09-585. 2nd DCA. March 3, 2010.

[Torts. Birth-Related Neurological Injury Compensation Association]

The Plaintiffs in the underlying action agreed to a settlement with the NICA after their son suffered neurological injuries at birth. This breach of contract action was filed after a dispute arose over preparation of structured settlement documents. The parties’ contract provided that NICA would “consider” structuring the settlement in a way that minimized the Plaintiffs’ tax liability. The Plaintiffs proposed a particular structured settlement to which NICA would not agree. The Plaintiffs filed an action for breach of contract claiming that the contract compelled NICA to structure the settlement as proposed. The parties filed cross motions for summary judgment and the trial court agreed with Plaintiffs and granted the Plaintiffs’ motion. The 2nd DCA held that NICA never expressly agreed that it would execute any specific structured settlement and that there were disputed issues of fact as to whether NICA negotiated in error or bad faith. Therefore, the case was reversed and remanded. 

DANIEL WEINGRAD, M.D., vs. KIMBERLY ANN MILES, et al. Case No. 3D08-1592. 3rd DCA. March 03, 2010.

[Torts. Retroactive Application of Cap on Noneconomic Damages]

The Plaintiffs in the underlying action received medical treatment for melanoma. She had surgery and the surgeon believed all the cancerous tissue had been removed. Plaintiff then sought a second opinion from the Defendant who indicated that additional surgery was needed as all the cancerous tissue had not been removed. Plaintiff underwent the recommended surgery after which she developed an infection that resulted in permanent injuries. Tests of the tissue removed indicated that the tissue was not cancerous and Plaintiffs filed a lawsuit claiming that the surgery was unnecessary. The case went to verdict and the jury awarded the Plaintiffs $1.5 million in noneconomic damages.

After the incident that gave rise to the Plaintiff’s claim but prior to service of their notice of intent to file the malpractice action, the Florida legislature passed F.S. 766.118 which caps noneconomic damages in medical malpractice actions at $500,000. The Defendant moved to limit the judgment to $500,000. The trial court denied the motion on the basis that, because the Plaintiff’s cause of action accrued before the statute was enacted, applying it to the action would be an unconstitutional retroactive application.

The 3rd DCA stated that whether or not the statute could be retroactively applied required consideration of 1. whether the statute expressed legislative intent for retrospective application and if so 2. whether the retroactive application would be constitutional.

The statute’s enabling clause states, in part:

    It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.

The 3rd DCA held that the Plaintiffs had no vested right to a specific damage award at the time the injury occurred and therefore, applying the cap to their noneconomic damage award was constitutional. The case was reversed and remanded.

LUIS ENRIQUE CRUZ-GOVIN, ET AL. vs. WILSON TORRES, et al. Case No. 3D09-1709.3rd DCA. March 3, 2010.

[Torts. Wrongful Death. Discovery. Privilege]

This case arose out of a vehicle accident in which the Plaintiff’s wife was killed. After the accident, Plaintiffs learned that the Defendant had received drug rehabilitation treatment and sought discovery related to the treatment. The Defendant filed objections which were denied by the trial court and the Defendant filed this interlocutory appeal.

Noting that Section 90.503(2), Florida Statutes (2009), provides that a patient has a privilege to decline to disclose information or records that are made in the diagnosis or treatment of mental conditions, specifically including alcoholism and other drug addiction, the 3rd DCA held that the requested discovery was privileged. There are three exceptions to the statute including communications that are either:

(a) relevant to an issue in involuntary commitment proceedings;

(b) made in the course of a court-ordered mental examination; or

(c) relevant to an issue of the patient’s mental or emotional condition which the patient relies upon as an element of his or her claim or defense.

The Plaintiff argued that the exception in Subsection (c) was applicable, because the complaint alleged that, at the time of the accident, the Defendant was under the influence of drugs or alcohol and the Defendant’s denial of this allegation was an “element of his defense”. The 3rd DCA concluded that the exception in Subsection (c) did not apply because that exception applies when the patient, not the party who seeks the privileged information, places his mental health at issue. The Court held that Defendant did not place his mental or emotional condition at issue by merely denying the allegations of the complaint and therefore, granted the petition for certiorari and quashed the trial court’s discovery order.

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