The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Florida High Court Upholds Florida’s Birth Injury Compensation Plan (NICA)

By on August 21, 2013 Posted in Florida

Last term, the Florida Supreme Court upheld the constitutionality of a state plan that provides up to $100,000 to the parents or legal guardians of an infant found to have sustained a birth-related neurological injury. See Samples v. Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912 (Fla. 2013) (click here to view the slip opinion). In so doing, the supreme court agreed with the lower appellate court’s decision (click here to view this decision) and answered the following certified question in the negative: “Does the limitation in section 766.31(1)(b)1., Florida, Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions?”

The Plan

The Plan, regulated by §§ 766.301-.316, Florida Statutes, was enacted to stabilize and reduce malpractice insurance premiums for obstetricians. To further this goal, the Plan established a limited system of compensation irrespective of fault for certain catastrophic birth-related injuries that result in unusually high costs for custodial care and rehabilitation. Whether claims are covered by the Plan is determined in an administrative proceeding.

The Decision

The petitioners’ challenge to the Plan centered around its $100,000 cap of a parental award regardless of whether there was one parent or two parents involved in the claim. The supreme court rejected all three constitutional challenges to the Plan—it found that it did not violate equal protection guarantees and the right of access to courts and found that it was not unconstitutionally vague. Specifically, the Court found the following on each challenge:

• Equal Protection: The parental award provision does not treat similarly situated persons differently because all people within the statutory classification of “parents” are treated equally in that all “parents”—whether applying for an award singly or jointly—can receive no more than $100,000. Limiting the parental award to $100,000 per claim—as opposed to per parent—is rationally related to maintaining “the actuarial soundness of the Plan.”

• Vagueness: Because the parental award provision does not require or forbid conduct, the void-for-vagueness doctrine does not apply in this context.

• Access to Courts: The Plan’s no-fault compensation scheme provides a reasonable alternative remedy to parents’ right to access the courts for redress of their child’s neurological birth-related injury.

Three justices dissented from the majority. Justices Perry, Pariente and Quince believed that the parental award provision violated equal protection.

Florida Supreme Court to Review Scope of Legislative Privilege in Redistricting Case

By on August 20, 2013 Posted in Florida

One of the cases the Supreme Court of Florida will be considering this Fall concerns “legislative privilege” – specifically, whether Florida legislators or legislative staff members can be forced to give deposition testimony and produce documents relating to legislation establishing new congressional districts. See Fla. House of Representatives v. League of Women Voters of Fla.; Romo v. Fla. House of Representatives, Nos. SC13-949 & SC13-951, accepted for review July 2, 2013, on review from 113 So. 3d 117 (Fla. 1st DCA 2013).

Proceedings in the Trial Court

When the Florida Legislature enacted a new redistricting plan in February of 2012, various individuals and organizations filed lawsuits claiming that the plan as a whole, and a number of individual districts, violated the Florida Constitution by impermissibly favoring Republicans and incumbents and by diminishing the ability of minorities to elect representatives of their choice. The plaintiffs sought an order declaring the plan or the challenged districts unconstitutional and enjoining future elections.

Because the constitutional provision alleged to be violated prohibits drawing an apportionment plan with the intent to favor a political party or an incumbent or with the intent to deny or abridge the equal opportunity of minorities to participate in the political process, the plaintiffs served a notice of taking depositions of the Senate Majority Leader and two staff members to obtain evidence of the intent underlying the plan. The plaintiffs also requested unfiled draft reapportionment maps and related documents. The Legislature sought a protective order to prevent the depositions and, more broadly, prohibit the deposition of any legislator or legislative staff member based on “legislative privilege,” a privilege earlier established by Florida’s First District Court of Appeal in Florida House of Representatives v. Expedia, Inc. 85 So. 3d 517 (Fla. 1st DCA 2012).

The trial court granted the Legislature’s motion for protective order in part and denied it in part, acknowledging Expedia, but reasoning that the legislative privilege “must bend somewhat” because of the constitutional requirement that the motive or intent of legislators be considered in determining the validity of the redistricting plan. The court distinguished between “subjective” and “objective” information and concluded that only the subjective thought processes and confidential communications of legislators and their staff warranted the full protection of legislative privilege. The court authorized the plaintiffs to depose legislators or staff members regarding objective information or communication that did not encroach on their subjective thoughts or impressions. The court applied the same subjective/objective dichotomy to the maps and documents, but ordered an in camera review. The Legislature petitioned the First District Court of Appeal for certiorari review of the trial court’s order.

Proceedings in the First District Court of Appeal

The First District quashed the trial court’s order. To view the First District’s slip opinion click here. Relying heavily on its earlier decision in Expedia, the court determined that because Expedia held that legislative privilege broadly protects legislators and legislative staff members from being compelled to testify about any matter “that is an essential part of the legislative process” or pertains to the performance of “a legitimate legislative function,” the privilege equally protects subjective information like the legislator’s rationale or motivation for proposing or voting on a piece of legislation, and objective information like data or materials relied on by legislators and their staff in the legislative process. The court concluded that the trial court departed from the essential requirements of law when it permitted the plaintiffs to depose legislators and legislative staff members on any matter pertaining to their activities in the reapportionment process. The court added that the trial court’s objective/subjective dichotomy was unworkable because there was no clear demarcation between subjective and objective. The court applied the same analysis to the plaintiffs’ request for maps and supporting documents, subject to Florida’s public records law.

Dissenting Opinion

Chief Judge Benton dissented on the basis that the First District had no jurisdiction “absent a demonstrated need to prevent irremediable harm.” In his view, that harm had not been demonstrated because no one knew what questions would have been asked at the depositions, and “[t]he mere appearance for deposition of a senator and two staff persons” was not sufficient harm to justify certiorari review. “The . . . Constitution makes plain that how and why the Legislature redistricts is a matter of paramount public concern. Petitioners have fallen far short of demonstrating why failing to keep this quintessentially public business under wraps would work irreparable harm.”

Status

The Florida Supreme Court designated this case as “high profile” and expedited the briefing, which was completed on August 12, 2013. Oral argument is scheduled for September 16, 2013 at 9:00 am. To check the current status of this case, click on the hyperlinked supreme court case number at the beginning of this article.

Illinois Supreme Court Extends Mailbox Rule to Judicial Review of Workers’ Comp Commission

By Kirk Jenkins on August 11, 2013 Posted in Illinois

Last week, in a case which had attracted nationwide interest in the workers’ compensation bar, a divided Illinois Supreme Court extended the mailbox rule to the process of initiating judicial review of decisions of the Workers’ Compensation Commission. Justice Robert R. Thomas wrote the opinion for the five-Justice majority in Gruszeczka v. The Illinois Workers’ Compensation Commission, with Justice Charles E. Freeman dissenting for himself and Justice Anne M. Burke. Our detailed preview of the facts and lower court opinions in Gruszeczka is here. Our report on the oral argument is here. Watch the video of the oral argument here.

The claimant in Gruszeczka filed a claim for benefits in connection with an injury he allegedly suffered on the job in 2004. The arbitrator denied the claim, and the Commission unanimously affirmed.

In Illinois, judicial review of a decision of the Workers’ Compensation Commission is initiated by filing a request for the issuance of summons and an attorney’s affidavit of payment of the probable cost of the record with the Circuit Court clerk. The governing provision of the Act provides that a proceeding for judicial review must be "commenced" within 20 days of receipt of notice of the decision. 820 ILCS 305/19(f)(1). Counsel for the worker allegedly mailed the request and counsel affidavit fourteen days after receiving notice. But for whatever reason, it wasn’t received in the court clerk’s office until twenty-four days after notice. So — which act "commenced" the proceeding — mailing or receipt? A divided six-Justice panel of the Workers’ Compensation Commission Division of the Appellate Court found that the Circuit Court had no jurisdiction over the administrative appeal, holding that since the issue was governed by a statute rather than a court rule, the courts had no authority to extend the mailbox rule to "commencing" judicial review.

The Supreme Court reversed. The court began by acknowledging that the usual presumption of jurisdiction in the Circuit Courts isn’t available in workers’ comp — there, the steps set forth in the statutory had to be strictly adhered to in order to vest the Circuit Court with jurisdiction over the appeal. However, unlike the Appellate Court, the Supreme Court majority found the word "commence" in the statute ambiguous. The next step after the plain language, of course, is the legislative history. There was nothing in the legislative history suggesting an intent to apply the mailbox rule; but then again, there was nothing suggesting an intent to disallow it either.

So the Court turned to the earliest decisions applying the mailbox rule and contrasted them with cases refusing to apply the rule. The court concluded that the cases were explained by a simple distinction: when an act began an entirely new proceeding, the mailbox rule never applied. When it merely continued a proceeding, the mailbox rule did apply. That rule resolved the problem at hand: judicial review of a workers’ compensation decision was clearly the continuation of an ongoing proceeding, not the beginning of a new one. So – particularly given that there was no issue of lack of notice of the claim, given that it had already passed through the arbitrator and the Commission — there was no reason the mailbox rule couldn’t apply, just as it did at the first step (appeal of the arbitrator’s decision to the Commission) and third step (appeal from the Circuit Court to the Appellate Court) of the process. The fact that a statute governed the issue made no difference; the majority observed that courts had made no distinction between statutes and rules in determining when the rule did and didn’t apply. The majority conceded that the legislature had not expressly imposed the mailbox rule in Section 19(f)(1), but observed that the legislature hadn’t disallowed its application either.

The problem with the majority’s analysis, Justice Freeman wrote, was that it entirely rested on cases which did not concern the Workers’ Compensation Act. Although there were no cases under the Act directly on point, Justice Freeman discussed several cases applying the former requirement that a party exhibit proof of payment of the probable cost of the record within twenty days of receiving notice in order to vest the Circuit Court with jurisdiction over the appeal. Given that the courts had dismissed several appeals where this step was not timely completed, Justice Freeman concluded that judicial review of a Commission decision is commenced when the request for issuance of summons and attorney’s affidavit is actually received and file-stamped by the clerk, and that the mailbox rule should therefore not apply.

Florida High Court to Clarify Content of Pre-Suit Expert Affidavits in Medical Malpractice Cases

By Erin E. Dardis on August 6, 2013 Posted in Florida

Florida has established a statutory framework for the pre-suit investigation of medical malpractice cases. See §766.201-.212, Fla. Stat. Part of that framework requires that a claimant, prior to noticing its intent to initiate medical negligence litigation, “corroborate reasonable grounds to support the claim of medical negligence” with a “verified written medical expert opinion.” On July 17, 2013, the Florida Supreme Court accepted review of a case that centers around the sufficiency of a plaintiff’s pre-suit expert corroborating affidavit. See Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA 2012) (Fla. Sup. Ct. Case No. SC12-2598).

Origin of Dispute

In the case, the plaintiffs, a husband and wife, filed a complaint based on injuries that the husband suffered to a tendon in his right ankle. The plaintiffs claimed that the injuries were the result of two arthroscopic surgeries and a steroid injection performed by Dr. Rell, a podiatrist. Following treatment with Dr. Rell, the husband sought a second opinion from Dr. Cottom, who ultimately performed two more surgeries on the husband’s ankle, stating that he suffered a “partial tear with tibialis anterior tendon as a result of previous arthroscopic debridement.”

The plaintiffs served a notice of intent to initiate a medical malpractice action on Dr. Rell and Coastal Orthopedics and Sports Medicine of Southwest Florida, P.A. and attached the affidavit Dr. Jeff Kopelman, which provided, in relevant part:

Dr. Rell injected 25% of dexamethasone phosphate into some scar buildup along the medical portal incision site. The concerns here, which would warrant further investigation, are (a) did the steroid go into the tendon and possibly weaken it and/or (b) predispose it to tearing? The evaluation of these concerns warrants further investigation….

In my expert opinion, based on the records provided, there are reasonable grounds that the patient’s tibialis anterior tendon could have been weakened or injured by the steroid shot given by Dr. Rell. This is notwithstanding that we are dealing with a patient with previous ankle medical history, as well as five surgeries on his foot, and therefore with increases in his risks of scarring, arthritis and possible future foot problems.

Dr. Kopelman did not opine whether he believed that Dr. Rell’s treatment fell below the standard of care or whether the injury was outside of the foreseeable results of the procedures.

Dr. Rell and Coastal responded to the notice of intent with a letter to the plaintiffs, advising them that the affidavit was deficient. Dr. Kopelman then executed an addendum to his original affidavit, which provided:

To clarify and supplement my Verified Opinion dated March 4, 2001, I would state that, based on the records reviewed, there exists reasonable corroborating grounds to further investigate a claim of medical negligence against Brian Rell, DPM and the causation of damage to patient David McCulla’s anterior tibialis tendon. I continue to reserve the right to modify my opinions based on additional information.

As with Dr. Kopelman’s original affidavit, the addendum did not include any opinion stating that there were reasonable grounds to believe that Dr. Rell’s treatment fell below the standard of care.

Trial Court Proceedings

After the plaintiffs filed their complaint, Dr. Rell and Coastal moved to dismiss, arguing that the plaintiffs failed to comply with Florida’s pre-suit notice requirements because they did not obtain a corroborating opinion from a medical expert attesting that the husband’s injuries were caused by medical negligence. The trial court denied the motion to dismiss, stating that while Dr. Kopelman’s affidavits may have been less than adequate to independently support a claim of medical negligence, the affidavits, in conjunction with the plaintiffs’ counsel’s review of the records, were sufficient to satisfy the statutory pre-suit requirements. See §766.203(2), Fla. Stat. Dr. Rell and Coastal sought a writ of certiorari in the Second District Court of Appeal to quash the order denying the motion to dismiss.

Certiorari Proceeding

The Second District stated that the purpose of the medical expert opinion is to assure the defendant and the court that a medical expert has determined that there is justification for the plaintiff’s claim; i.e., to “corroborate that the claim is legitimate.” The purpose is not to simply give notice of the plaintiff’s claim. Thus, the issue was whether the plaintiffs’ expert’s affidavit sufficiently indicated that the husband had a legitimate claim for medical malpractice. “In other words, did the corroborating affidavit sufficiently set forth that Dr. Rell was negligent in the care and treatment of [the husband] and that such negligence resulted in injury to [the husband]?”

The court found that while Dr. Kopelman noted in his affidavit that Dr. Cottom believed that the arthroscopic surgery performed by Dr. Rell tore the husband’s anterior tendon, Dr. Kopelman did not go so far as to opine that such action constituted medical negligence. In addition, while Dr. Kopelman opined that there were reasonable grounds “to further investigate a claim of medical negligence” against Dr. Rell, he never provided any definitive corroboration that the plaintiffs’ claims were legitimate; that is, that Dr. Rell provided negligent care and treatment and that such negligence resulted in injury. The court also stated that because the affidavit failed to indicate in which manner Dr. Rell deviated from the standard of care, Dr. Rell was prevented from conducting a full evaluation of the merits of the plaintiffs’ claim. Thus, the court held that the requirements of Section 766.203(2) were not met and that the trial court departed from the essential requirements of the law when it failed to grant the motion to dismiss.

The parties have begun the briefing process in the Florida Supreme Court, which will schedule oral argument in the future. The author will update this article after the Court decides the case.

Florida High Court Precludes Use of Extrinsic Evidence to Construe Ambiguous Policy Language

By on July 26, 2013 Posted in Florida

In a controversial 4-3 decision, the Florida Supreme Court in Washington National Insurance Corp. v. Ruderman, No. SC12-323, 2013 WL 3333059 (Fla. July 3, 2013), held that ambiguous language in an insurance policy “must be construed against the insurer and in favor of coverage without resort to consideration of extrinsic evidence.” (Emphasis added). While the first part of the Court’s holding, which is embodied in the Latin phrase contra proferentem, was nothing new, the second part of its holding—excluding the use of extrinsic evidence—appears to be a significant departure from well-established Florida jurisprudence. The Court limited its analysis on this issue to a 34-year old decision, Excelsior Ins. Co. v. Pomona Park Bar & Pkg. Store, 369 So. 2d 938 (Fla. 1979), and found that the Court never “expressly” held there that “extrinsic evidence must be considered in determining if an ambiguity exists.”

The Dissent

The dissent, authored by Chief Justice Polston, disagreed that the policy was ambiguous and charges that the “majority improperly rewrites the parties’ contract to provide coverage for which the parties did not bargain and the insureds did not pay.” Even if the policy was ambiguous, the dissent contends that the majority “improper recedes from [its own] precedent” since “it is well-settled Florida law that parties may attempt to resolve an ambiguity through available extrinsic evidence before applying the last-resort principle of construction against the drafter.” To support its position, the dissent cites to decisions from the supreme court (one dating back over 100 years) and the district courts. The sheer volume of authority referenced by the dissent with selected quotations appears to render the majority’s analysis facially incomplete.

Potential Ramifications

The Court’s decision will probably have a tremendous impact on coverage disputes in the state of Florida. The holding effectively precludes insurers from introducing any evidence to oppose a claim that a policy provision is ambiguous. Consequently, insurers will have to focus their legal energy on convincing the court that the policy is clear and unambiguous. On the other hand, given that ambiguity is an extremely subjective determination (as evidenced by this decision), if an insurer offers what the trial court believes to be a reasonable (and favorable) construction of the policy, the courts will have to side with the insured.

While it remains to be seen, the decision could also obviate the need for experts and streamline cases. The decision also leaves unanswered whether the sophisticated insured defense—an exception to the doctrine of contra proferentem—is viable. Similarly, while insurers can try to insulate themselves from the effect of the decision by allowing insureds to actively negotiate insurance policies, this would only be realistic for large, sophisticated commercial policyholders. Finally, litigants may try to use the decision in run-of-the-mill contract disputes where the contract was drafted by one party without negotiation or input by the other party.

Florida Adopts New Standard Jury Instructions for Contract and Business Cases

By on July 26, 2013 Posted in Florida

Florida’s Supreme Court recently adopted new standard jury instructions for contract and business cases. The instructions, drafted over a period of six years by a committee of Florida trial and appellate lawyers and judges, and modeled in form after California’s contract instructions, cover all aspects of contract and business disputes, including contract formation, breach, interpretation, oral and implied contracts, affirmative defenses and damages. Many of the instructions cite extensive sources and authorities, making them an excellent Florida contract law resource. To review the decision adopting these new instructions click here.* Below is a list of the substantive instructions (Sections 400 and 500):

Breach of Contract

416.1 Introduction

416.2 Third-Party Beneficiary

416.4 Essential Factual Elements

416.23 Anticipatory Breach

Contract Formation

416.3 Essential Factual Elements

416.8 Offer

416.9 Revocation of Offer

416.10 Acceptance

416.11 Acceptance by Silence or Conduct

Oral and Implied Contracts

416.5 Oral or Written Contract Terms

416.6 Contract Implied in Fact

416.7 Contract Implied in Law

Contract Interpretation

416.14 Disputed Term(s)

416.15 Meaning of Ordinary Words

416.16 Meaning of Disputed Technical or Special Words

416.17 Construction of Contract As a Whole

416.18 Construction by Conduct

416.19 Reasonable Time

416.20 Construction Against Drafter

Affirmative Defenses

416.25 Mutual Mistake of Fact

416.26 Unilateral Mistake of Fact

416.27 Undue Influence

416.28 Fraud

416.29 Negligent Misrepresentation

416.30 Waiver

416.31 Novation

416.32 Statute of Limitations

416.33 Equitable Estoppel

416.35 Judicial Estoppel

416.36 Ratification

Other Instructions

416.12 Substantial Performance

416.13 Modification

416.21 Existence of Conditions Precedent Disputed

416.22 Occurrence of Agreed Condition Precedent

416.24 Breach of Implied Covenant of Good Faith and Fair Dealing

416.37 Goods Sold and Delivered

416.38 Open Account

416.39 Account Stated

416.40 Money Had and Received

Damages

504.1 Introduction to Contract Damages

504.2 Breach of Contract Damages

504.3 Lost Profits

504.4 Damages for Complete Destruction of Business

504.5 Owner’s Damages for Breach of Contract to Construct Improvements on Real Property

504.6 Obligation to Pay Money Only

504.7 Buyer’s Damages for Breach of Contract for Sale of Real Property

504.8 Seller’s Damages for Breach of Contract to Purchase Real Property

504.9 Mitigation of Damages

504.10 Present Cash Value of Future Damages

504.11 Nominal Damages

* The new instructions have not yet been posted to the supreme court’s website. This link is to the opinion adopting the instructions, and the instructions can be found in the appendix.

Florida Legislature Allows Plaintiffs to Contest Their Reimbursement to Medicaid

By on July 18, 2013 Posted in Florida

Effective July 1, 2013, Florida’s Medicaid Third-Party Liability Act now provides a mechanism for recipients of Medicaid to challenge the amount they must reimburse Florida’s Agency for Healthcare Administration (AHCA) after settling with or obtaining a judgment or award against liable third-parties. See § 409.910(17), Fla. Stat. (to see the amendments as reflected in the session law click here and go to the bottom of page 6; to read the legislative staff analyses on the new law click here and here). Under the Act, a Medicaid recipient who receives a settlement, award or judgment in a third-party tort action is required to reimburse AHCA for any related Medicaid medical costs. The medical costs are calculated as the lesser of 37.5% of the total recovery or the total amount of medical assistance paid by Medicaid. See § 409.910(11)(f), Fla. Stat. The Act contains a super-priority provision requiring repayment “in full and [p]rior to any other person, program or entity . . . regardless of whether a recipient is made whole or other creditors paid.” § 409.910(1), Fla. Stat.

Wos

The amendment is a direct response to the United States Supreme Court’s decision in Wos v. E.M.A., 2013 WL 1131709 (U.S. Mar. 20, 2013), invalidating a North Carolina statute that required up to one-third of any damages recovered by a Medicaid beneficiary to be repaid to the state. The Supreme Court held that North Carolina’s statute was preempted by the federal anti-lien provision due to the fact that the state statute created an irrebuttable, one-size-fits-all statutory presumption that one-third of a tort recovery is attributable to medical expenses. Such an irrebuttable presumption was found to be incompatible with the Medicaid Act’s clear mandate that a state may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses.

The Amendment

In light of Wos, the Act was amended to allow a Medicaid recipient to contest the amount designated as a medical expense by filing an administrative petition in Tallahassee, Florida. Prior to the amendment and like the stricken North Carolina statute, there was an irrebuttable presumption that AHCA was entitled to 37.5% of the total recovery. To prove that a lesser portion of the total recovery should be allocated as reimbursement, the recipient must present clear and convincing evidence. The amendment does not address the type of evidence a recipient may present at a hearing, although the high burden suggests that expert testimony will probably be required. The recipient must also bear its own fees and costs for the administrative proceeding.

This new statutory procedure is the exclusive method for challenging the amount of third-party benefits payable to AHCA. While it remains to be seen how many beneficiaries avail themselves of this new provision, the non-central venue, high burden of proof and unrecoverable fees and costs clearly reflect Florida’s intention to maintain its presumptive 37.5% recovery.

Florida High Court to Clarify Apportionment of Joint Proposals for Settlement

By Erin E. Dardis on July 17, 2013 Posted in Florida

On May 3, 2013, the Florida Supreme Court accepted for review two cases involving the apportionment of joint proposals for settlement: Arnold v. Audiffred,98 So. 3d 746 (Fla. 1st DCA 2012) (Fla. Sup. Ct. Case No.: SC12-2377) and Pratt v. Weiss, 92 So. 3d 851 (Fla. 4th DCA 2012)(Fla. Sup. Ct. Case No.: SC12-1783). In Arnold, the district court declared the proposal unenforceable; in Pratt, the district court found the proposal enforceable. The governing rule of procedure in Florida provides that “[a] joint proposal shall state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3). The rule excuses apportionment “when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable.” Id. 1.442(c)(4).

Arnold

In Arnold, the husband and wife plaintiffs sued for damages sustained as a result of a car accident. The wife sued for her personal injuries and damages to the car and the husband sought loss of consortium damages. The wife served a proposal for settlement seeking to resolve the following claims: “Any and all claims Plaintiffs have brought against the Defendant set forth in the Complaint in the above-captioned case and any other claim or claims that may have risen as a result of the subject incident set forth in Plaintiffs’ Complaint, including attorney’s fees or costs.” After a trial, the jury awarded the wife her past medical expenses, but did not award her anything for permanent damages or to her husband for his loss of consortium claim. The plaintiffs moved for attorney’s fees pursuant to the proposal for settlement. The defendant moved to strike the proposal, arguing that it was a joint proposal that should have apportioned the amount attributable to each plaintiff. The trial court denied the motion and granted the motion for attorney’s fees and costs.

The First District Court of Appeal stated that proposals for settlement are governed by the rules for interpretation of contracts and that a proposal should be looked at as a whole and construed “according to its own clear and unambiguous terms.” Accordingly, while the first two paragraphs of the proposal for settlement stated that the wife was the sole offeror, the proposal, as a whole, offered that both the husband and the wife would dismiss their claims against the defendant upon the defendant’s acceptance. As such, the proposal for settlement was a joint proposal and it should have apportioned the settlement amount between the two plaintiffs.

Pratt

In Pratt, the plaintiff sued numerous defendants for medical negligence, including FMC Hospital, Ltd., d/b/a Florida Medical Center, and FMC Medical, Inc., d/b/a Florida Medical Center. The complaint alleged that these two entities “owned, operated, maintained, and controlled” Florida Medical Center. The complaint also alleged that FMC Hospital, Ltd. was a limited partnership and that FMC Medical, Inc. was a general partner of Florida Medical Center. While the complaint named the two entities as defendants, each was alleged to be responsible for the negligence of a single entity, Florida Medical Center.

The two defendants submitted a proposal for settlement to the plaintiff, identifying the “party” making the proposal as both defendants and seeking to resolve “all pending matters between the plaintiff and the named defendants.” The settlement agreement and release attached to the proposal required the plaintiff to also release any “agents” of the two defendants.

At trial, the plaintiff and FMC Hospital, Ltd. stipulated that the proper party in interest was FMC Hospital, Ltd. d/b/a Florida Medical Center. The jury found in favor of FMC Hospital, Ltd., which then moved for attorney’s fees pursuant to the proposal. The trial court found the proposal enforceable because it had been made by a single entity, the hospital, and was unambiguous.

On appeal, the plaintiff argued, among other things, that the proposal was unenforceable because it did not apportion the offer between the two named defendants. The defendants countered that they were treated as a single entity throughout the litigation, they were represented by the same lawyer, they filed a single answer, and they were listed as FMC Hospital, Ltd., a Florida limited partnership d/b/a Florida Medical Center, on the verdict form. The appellate court noted that the singular nature of the entity was most evident in the parties’ stipulation that FMC Hospital, Ltd. was the only proper defendant. The appellate court also disagreed with plaintiff that the release was ambiguous because it required the plaintiff to release the hospital’s agents; the court noted that the language provided for the release of only unnamed agents of the hospital. The appellate court further noted that the plaintiff’s suggestion that the release applied to future unknown claims was debunked by the language in the release that restricted future claims to “the injuries and damaged alleged” by the plaintiff. The appellate court affirmed the trial court decision, finding that the defendants’ failure to apportion the proposal did not render it unenforceable.

Both cases are currently being briefed before the Florida Supreme Court. The Court has dispensed with oral argument in both cases.

Florida Legislature Reforms Medical Malpractice Laws

By on July 12, 2013 Posted in Florida

Effective July 1, 2013, the Florida Senate passed legislation that clarifies when a non-defendant physician may retain legal representation when called as a witness and limited who may qualify as an expert witness in medical negligence cases. See Senate Bill 1792 (legislative history for the law can be found here).

As for the first change, the amendment was aimed at reversing and clarifying the Florida Supreme Court’s decision in Hasan v. Garvar, 108 So. 3d 570 (Fla. 2012), which curtailed a non-defendant physician’s right to counsel when subpoenaed for deposition in a medical malpractice case. The new law allows a physician, during a consultation, to disclose to his or her counsel information disclosed by a patient or records created during the patient’s care or treatment. The new law, however, prohibits counsel from being a conduit for ex parte communications between the physician and the defendant or the defendant’s insurer. For example, if the physician’s liability insurer represents a defendant or prospective defendant:

● The insurer may not choose an attorney for the provider, but may recommend attorneys other than the attorney representing the defendant or a prospective defendant; and

● The provider’s attorney may not disclose any information to the insurer, other than categories of work performed or time billed.

As for the second major change, the new law limits who may offer expert testimony in a medical negligence action against a specialist. Under the prior law, the experts must specialize in the same or similar specialty as the defendant. The new law requires these experts to specialize in the same medical specialty as the defendant-physician.

The plaintiffs’ bar has filed five different lawsuits in Florida state and federal court challenging the constitutionality of these reforms.

Illinois Supreme Court to Decide Constitutional Challenge to Parental Notice of Abortion Act on Thursday

By Kirk Jenkins on July 9, 2013 Posted in Illinois

The Illinois Supreme Court has announced that on Thursday morning, it will hand down its decision in Hope Clinic for Women v. Adams. Hope Clinic is a challenge to the constitutionality of the Illinois Parental Notice of Abortion Act. Because the challenge in Hope Clinic was brought solely under the Illinois constitution, the case raises interesting issues of the degree to which the state constitutional rights of privacy and gender equality are coextensive with, or perhaps broader than, Federal constitutional rights. Our detailed discussion and analysis of the facts and lower court rulings in Hope Clinic is here. Our report on the oral argument is here, and the video of the oral argument is here.